Torture Should Be Accounted For

Torture is among the most heinous crimes known to humankind. It should never be excused, it should never go unpunished. It is not about who the tortured are, or what the tortured know. It is not about what they have done, what they believe, or whether they would do the same. It is about who we are, and how human beings should be treated. It is about our humanity, that is all.

Wednesday, April 30, 2008

A Low Bar for Heroes

The term perfect storm was coined in reference to the combination of three weather phenomena, a low pressure region, a cool high pressure region, and hurricane moisture, to come together to turn a nor'easter into a hurricane with nightmarish maritime consequences. Although the expression is overused, perhaps it is a reasonable description of the forces that came together in the Bush White House to produce the policies that lead to the sanction of torture at the highest levels of the United States government. And perhaps it is premature to declare anyone who objected to one of the three currents, but was wholeheartedly supporting of others, a hero.

The Nexus of Power, Sovereignity, and Authority

In this case, the three trends were the neocon policies of forceful projection of American power, the new sovereigntist views opposing any and all restrictions to U.S. authority by international law, and the federalist/unitary executive theorists arguing for increasing the power of the executive branch of government over the other two branches. Not all adherents of one or the other of these philosophical viewpoints were necessarily adherents of them all, and it is interesting to note, looking back over the last seven years, that those who were adherents of them all seem to also be those who are often looked on as the most evil. Principal among those would be Vice President Cheney and some who operate out of his office, like David Addington.

But what of the odd hero of many of late, Jack Goldsmith, who's rescinding of torture memos, and participation in the FISA stand-off in John Ashcroft's hospital room have earned him a sort of respect and admiration, exemplified by Jon Stewart's attempts to wring a condemnation of the policies of John Yoo and others out of Goldsmith on The Daily Show, only to end up complaining that Goldsmith had rebutted every attempt Jon Stewart had made.

Goldsmith is a new sovereigntist, one of the originals, who was leading the charge against what he and others of that belief saw as the illegitimate application of customary international law by the courts, and decried the intrusion of foreign powers working against U.S. sovereignity in the forwarding of international human rights law -- all before the Bush administration took office. The names of these people contain some that are familiar, and some that overlap with other concerns: Robert Bork, John Yoo, John Bolton, David Addington, Jack Goldsmith, and less known people like Curtis Bradley and Jeremy Rabkin.

Perhaps they had a sympathetic ear with George W. Bush and his counsel and later Attorney General Alberto Gonzales. Years before his presidency, Bush had been confronted with international pressure to conform to human rights standards from abroad, in the form of letters from the European Union pleading against death penalty implementations in Texas, penalties that had been forwarded to then Governor Bush by Gonzales, on grounds of international treaties, and on general humanitarian grounds.

When these people were combined with the neocons asserting the rights of the United States to assert power in the wake of September 11, and of those who sought to expand presidential power, a goal of Vice President Cheney since the Watergate days, the result was a national security legal team that Goldsmith characterized as the war council, whose principal members were Gonzales, then White House Counsel, Addington, then Vice Presidential Council, Yoo, then deputy assistant attorney general in the Office of Legal Council, and William J. (Jim) Haynes II then Department of Defense legal counsel and Goldsmith's boss. It is interesting that in the fight over the U.S. attorneys there should be so much talk about the OLC not separating themselves from the White House when there was such a group that met regularly to decide how to legalize national security policy.

This mix of beliefs in an all powerful wartime president, in asserting both American power and defying international law, led to torture memos and enhanced interrogation methods that have since been supposedly repudiated. It led to the NSA illegal wiretapping and challenges to the FISA laws. It is probably still felt in the assertions by both the presidency and the vice-presidency that they do not need to testify before Congress, or more astonishingly, that Congress has no right to oversight at all. It led to the signing statements in some ways, the assertion, coming originally from Federalist Society members like Samual J. Alito Jr. that the sense of the President in signing legislation held equal or greater weight than the sense of the Congress in authoring and passing it.

Believing in Less

Some in the administration's team believed in less, and Goldsmith was one of them. He believed absolutely in the right of the President to ignore international law and act forcefully in the name of national security, but was apparently appalled, if that's the right word, by the assertions of presidential power over the other two branches of government, the decision by the executive branch to 'go it alone'. And that was his real objection to the Yoo torture memos -- that they put the President on weak legal footing when instead the President should have gone to Congress and the courts to get backing for those powers. That isn't exactly a heroic position against torture, and it is the source of the confusion Jon Stewart was experiencing.

It is worth looking at his positions in the light of his writing at the time, and in light of the context. It is worth looking at his tenured position at Harvard with equal scrutiny to that of John Yoo's at Berkeley, regardless of his protestations that he didn't write the memos enabling torture. Shall we start with the memo he did write, enabling rendition of Iraqi and foreign prisoners to CIA sites for interrogation or to Guantanamo or Bagram?

A Little Context

In December of 2001, as the invasion of Afghanistan progressed, the Bush administration was looking for ways to detain and interrogate prisoners. That was the month that the decision was made to put prisoners beyond the law in Guantanamo Bay, that was the month that the memos out of the OLC resulting in presidential directives were being written, to declare al Qaeda and the Taliban to be not covered by the Geneva Conventions. The fiasco at Tora Bora was going down, and, since everyone knows one reason for its outcome was siphoning off of forces to prepare for war in Iraq, a wider war was being discussed. As a result of the Taliban and al Qaeda being forced over the mountains in Afghanistan, they were fleeing into Pakistan, principally into the Northwest Frontier Provinces (NWFP). That was when the majority of the people who would become quasi-permanent detainees, the high and the low valued ones, were being arrested in Pakistan. Over a few months, 3,000 would be arrested, mostly Pakistanis who had gone north to participate in the fighting, or were on the out-and-out with the Pakistani ISI, or were turned in by whomever, or... Out of those arrested, there were 275 (some say 255) prisoners who were 'foreign fighters'. They were segregated off from the Pakistani nationals, and turned over for 'interrogation' to the FBI and the CIA at Kohat and Haripur prisons in the NWFP. While initially all were held within Pakistan, eventually there would be reports of prisoners 'disappeared' in Pakistan, who ended up at Bagram in Afghanistan, and of course there were well known high profile detainees such as Abu Zubaydah and Khalid Sheikh Mohammad, who went to Black Sites, and then to Guantanamo.

The separation would form the seed of the legal justifications later written into a memo by Jack Goldsmith, namely, that to get around the restrictions of the Fourth Geneva Convention, specifically Article 49, which prohibits moving civilians out of the territory of the conflict or of occupation, the foreign fighters could be charged with immigration violations under local law, and the locals could be held without charge. That's right, the grounds on which fighters could be rendered within Pakistan to Americans for interrogation by the Pakistani government was that they were illegal immigrants. Chilling, isn't it, to know what being an illegal immigrant can mean in the war on terror? Incidentally, the current scraps between the judiciary and Pervez Musharraf in Pakistan have as part of their roots precisely these disappeared prisoners and their detention without charge. But Goldsmith wrote in 2004, because he had by then become the head of the OLC, and his subject was Iraq.

To add more context to the memo which Jack Goldsmith wrote in March 2004 to put those detained by the Americans in Iraq outside of Article 49 so that the CIA could take them out of Iraq to interrogate them, Military Intelligence was, at the time being criticized for interrogation methods, in Iraq, that the ICRC stated were 'tantamount to torture'. The practices used had led, in one instance, to a prisoner with conversion disorders so strong that the prisoner, when examined by Red Cross doctors, was found to be 'unresponsive to verbal and painful stimuli' as a result of interrogation (p.13). Dana Priest, Jane Mayer, and others would eventually write about Black Sites, and document the use of refined methods of sensory deprivation and waterboarding there. Saying one did not write torture memos, when one wrote memos to justify spiriting prisoners out of Iraq to CIA interrogation, is a bit, shall we say, less than heroic.

How It Should Have Been Done

So, given that John Yoo did it all wrong, what were the arguments for taking people from Iraq and putting them into CIA interrogation? Well, for the foreign fighters, they were patterned on the Kohat prisoners. Jack Goldsmith meanders through pages of word etymologies and meanings taken from the time the Geneva Conventions were written (common apparently for new sovereigntists), to be very clear to himself what deportation means in Article 49. He decides that the writers were reacting to mass forced deportations during World War II, how the first word of the sentence, "individuals," got there he doesn't say. He decides that the difference between transfers and deporations is somehow permanence. He even relies on the convention's stipulation that children under 15 be removed from war to justify the idea that the convention doesn't really mean that nobody can be moved. And then he decides that, since the occupying power must enforce the local laws, and since the Iraqi government prior to invasion had a law requiring deportation of illegal immigrants, the U.S. was merely enforcing immigration laws in Iraq by transporting them to CIA sites, or to Bagram or Guantanamo.

And what of the Iraqi citizens? Surely if Article 49 applies to anyone, it applies to them. Ah, but wait. In a precursor to Antonin Scalia's comments that torture would be legal if it is not done for punishment, and even basing his points on the stipulation that various Bill of Rights amendments only apply in court, or only after conviction, Goldsmith determines that the only civilian prisoners who cannot be moved out of the country are those who have been accused. Consequently, the CIA can take them to Black Sites if no one has charged them with an offense yet. Very interesting, since the reason that the military can hold prisoners without charge, supposedly, is because they are combatants, who may be held for the duration of conflict. Civilians are not supposed to be detained without charge at all. But by extending the period between arrest and accusation, they are suddenly eligible for a sensory deprivation chamber or a little enhanced interrogation somewhere outside of Iraq, as long as they are brought back afterwards and accused of something. Illegal immigration and detention without charge aren't just political causes or assurances that terrorists don't get to many of our rights, they are ways to ignore the laws of war.

What a noble guy. Perhaps Harvard Law should confer with Boalt Hall, and together they should come up with a policy for granting tenure, that does better than give enablers of torture and enablers of rendition into the blackness of secret sites positions for life from which they can come and go as their government needs their nefarious services.

Monday, April 28, 2008

Context and Ambiguity

The disclosure Sunday of more information about the CIA interrogation program in the New York Times brings out more of the same, and more that's different. More that's different in that it revealed opinions written by the Justice Department after the passage of the Military Commissions Act of 2006, with its broad changes to the rights of prisoners and to American adherence to the Geneva Conventions. Not surprisingly, the new opinions cite the new power of the President to define what a grave breach of the Geneva Conventions is, and to be the sole interpreter of the Geneva Conventions for America. But there was also more of the same: the same parsing of techniques, stipulations as to how far one could go before it is considered torture, and even the assertion that the Geneva Conventions contain some kind of sliding scale dependent on how badly the information is needed for national security. Quoting from the article,

Some legal experts critical of the Justice Department interpretation said the department seemed to be arguing that the prospect of thwarting a terror attack could be used to justify interrogation methods that would otherwise be illegal.

“What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense,” said Scott L. Silliman, who teaches national security law at Duke University.

But a senior Justice Department official strongly challenged this interpretation on Friday, saying that the purpose of the interrogation would be just one among many factors weighed in determining whether a specific procedure could be used.

“I certainly don’t want to suggest that if there’s a good purpose you can head off and humiliate and degrade someone,” said the official, speaking on the condition of anonymity because he was describing some legal judgments that remain classified.

“The fact that you are doing something for a legitimate security purpose would be relevant, but there are things that a reasonable observer would deem to be outrageous,” he said.

At the same time, the official said, “there are certainly things that can be insulting that would not raise to the level of an outrage on personal dignity.”

The humiliating and degrading treatment of prisoners is prohibited by Common Article 3 of the Geneva Conventions.


The legal reasoning included in the latest Justice Department letters is less expansive than what department lawyers offered as recently as 2005 in defending the use of aggressive techniques. But they show that the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules.

Boy is there ever a lot there, and maybe not what it seems. And therefore a discussion about context and ambiguity.

What is never challenged

There are a few assumptions that are never brought into the discussion that are therefore never challenged. The first is the assumption that what is acceptable and what "shocks the conscience" shall be determined by those in a relatively sterile environment. It is the fallacy of the existence of objective observers in matters related to cognitive processes. What is always missing is the context. When Donald Rumsfeld wrote on the memo, "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?" the answer should have been context. There is a lot of difference between standing bolted to the floor in a small cell at Bagram, or at Abu Ghraib, or at Guantanamo, and standing at a desk doing one's day job at the Pentagon. And that isn't just an opinion. When one does not know what is going to happen, when one fears one is going to be killed, when one is asked questions for which one does not know the answer but must answer anyway due to threats, when one feels there is no way out, the fight or flight system, the sympathetic nervous system, is activated. Increases in epinephrine and nor-epinephrine (adrenalin) cause your brain to activate different links between the hippocampus and the amygdala. These can enhance or detract from memory, but generally enhance threat related perceptions. Added focus on the present, and the necessity of maintaining readiness, as well as the survival mechanisms that insist that any survived danger needs to be remembered in detail lest it be needed again, create a scenario in which seemingly innocuous acts are very threatening, seemingly irrelevant details are remembered in fear forever, and bring with them all the consequences of critical incident stress -- the possibly lifelong consequences that include depression and PTSD.

If the difference between Secretary Rumsfeld standing at his desk and a prisoner standing chained to the floor are so great, what about comparisons between prisoner treatment and the SERE program? One of the defenses that has been advanced on techniques like waterboarding, for example, is that many U.S. servicemen and women go through the SERE program, and therefore experience treatments sometimes including waterboarding, and they neither drown nor experience lifelong psychological damage. But these people know they are in a training exercise, and know it will be ending, and know that no one is trying to kill them. By contrast, a prisoner at any of the military prisons listed above, or especially at a CIA Black Site, knows very surely that they are not engaging in a training exercise. They do not know that no one is trying to kill them, either. Not with over 100 deaths in the interrogation and detainment programs.

As hard as it may be to believe, the mere fact that one may not get out of the situation can alter even something very much akin to a training program. In the Stanford Prison Experiment, one of the prisoners met with the administrators of the experiment, and erroneously came back with the impression that there was no way out, that one could not break the contract, that one could not get out of the 'prison'. This led to both the derangement of that prisoner and to effects on the others once he had communicated what he believed he had learned to them (Zimbardo, The Lucifer Effect, pp. 70 ff.) . When the Torture Council principals met and discussed the combination of techniques in the Situation Room, among the concerns was that a combination of techniques could rise to the level of torture when each single technique did not. But the context was never, that I can tell, figured in, and continues not to be, except when it is explicitly part of the technique -- making a prisoner believe he has been transported to a particularly brutal country, for instance.

Nor is an interrogator immune to context. The guards in the Stanford experiment, as well as the experimenters themselves, because they played the roles of superintendents and wardens, were adversely affected and became brutal. The effect is well known and striking at Abu Ghraib. In the 1970's, a movie called Titicut Follies, about the state correctional facility for the criminally insane at Bridgewater, Massachusetts, showed footage in which guards brutalized and degraded inmates. The inmates were also aware that the way out of the facility was to be buried at the facility graveyard. The scandal that ensued, including that Bridgewater and rumors of Bridgewater had been used at Boston's Charles Street Jail as a threat to control inmates, resulted in what imdb notes as the film being the American film banned for reasons other than obscenity or national security. The effects of just having such an environment could change the behavior of those at Charles Street, and the effects on the guards and the warden of the surrealistic environment at Bridgewater are more than evident throughout the film. At Abu Ghraib, interrogator Tony Lagouranis recalls feeling, "morally isolated, that you felt like you could do whatever you want to this guy, and maybe you even want to."

If it is that context dependent for the guards and interrogators, why so little attention paid to the context for the prisoners? Is it that what isn't torture at the Pentagon must be seen to not be torture at Bagram? Is it that context matters when a lawyer is arguing on behalf of the CIA that there must be a sliding scale for the interrogators, but that the sliding scale involving the dumping of adrenalin into brain interactions and the psychological damage that results is not one of those rights given to "alien illegal enemy combatants"?

Those Ambiguous Geneva Conventions

Ambiguity seems to be a word that is linked by everyone to the Geneva Conventions these days. Journalists now mention it without being prompted: Mark Mazzetti mentions the vague language in the context of CIA lawyers attempting to find justification in the conventions for their interrogation programs. When the MCA of 2006 was passed, the justification for the notorious Section 6, which gives the President such unilateral authority over the official interpretation of Geneva, was that it was necessary to tighten up the language of Common Article 3 in order to prevent detainee abuse and torture.

Even before that, the brilliant Frontline piece, Questioning Torture, says, "The Fourth Convention's guidelines are less specific than the Third's..." and,

But American soldiers were not as well versed in the Fourth Geneva Convention as they were with the Third. Furthermore, the rhetoric coming from Washington was that Iraq was another front in America's "war on terror," implying Iraq's insurgents were "unlawful combatants" just like the detainees at Guantanamo whom President Bush had declared outside Geneva's protections.

The MCA of 2006 grants the President the official opinion on the matter, but requires that the President publish that opinion in the Federal Register. Consequently, there is an executive order published, 13440, that lays out adherence to the Geneva Conventions, supposedly, for the CIA (the military now follows the Army manual which follows the U.S. Military Code of Justice).

For 50 years, the Geneva Conventions were neither vague nor ambiguous. Common Article 3, the focus of both Administration and media attention, forbids,

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
This has always, previously, been taken to mean that you couldn't degrade a prisoner at all, and that you could not abuse a prisoner, nor coerce answers during interrogation. Interrogator Roger Brokaw, in the Frontline piece, asserts that the major part of interrogation training, when he took it (15 years previous to interview) was complying with the Geneva Conventions. The ambiguity was introduced by the commanding officers at Gitmo, either arguing that certain types of physical treatment weren't covered by Geneva, or that the prisoners weren't entitled to Geneva protections. And all we hear about is the Third Geneva convention, we hear constantly from some quarters about these people weren't wearing uniforms, and so forth, and then the fixation, after Hamdan v. Rumsfeld, with Common Article 3.

The truth is, most, perhaps nearly all of the prisoners in U.S. custody have rights under the Fourth Geneva Convention (on civilians), and not the Third (on prisoners of war). A curious consequence of that is that uniforms are irrelevant for civilians, and all theaters in which the U.S. is engaged are High Contracting Parties to the Fourth Convention of 1949. It includes Common Article 3, to be sure, that's why it's called "Common". But like the Third Convention before this mess began, it is also far from vague. Here are a few excerpts. Keep in mind that the Military Commissions have yet to hold their first trial, and that the Combatant Status Revue Tribunals have not processed any where near the 14,000 prisoners in Iraq or 13,000 in Afghanistan:

Art. 31. No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.

Art. 32. The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.

Art. 33. No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.

Art. 43. Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.

Art. 49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

Art. 147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

The common perception, common in our media, common in our discussions, common in the statements of our government, is that all the people incarcerated and interrogated by our government are terrorists, begrudgingly entitled only to the protections of Common Article 3. The common perception, common in our media, common in our discussions, common in statements of our government, is that interrogation to the level of torture would only be practiced when there was a ticking nuclear time bomb in Los Angeles and only the person being questioned could tell us what we needed to know to keep 100,000 people from dying. In that Frontline series of interviews, both Lagouranis and Brokaw asserted that very few of the prisoners interrogated knew anything. That also comes across in the official investigations.

So what if the common perception is wrong? What if the real scenario is: There might be a bomb, it will be ticking someday, but not now, someone among these 27,000 prisoners knows something about it, 98% of them have never engaged in terrorism, almost all of them are protected by the Geneva Conventions, and the techniques you use will be amplified 10-fold in psychological effect by the fact that they believe they will die here.

Has context sharpened things?
Are those conventions ambiguous or do they draw a very bright line?

Friday, April 25, 2008

Pouring and Forcing

The torture topic, shall we say, is getting legs. After Elsinora's post on Daily Kos, Marty Lederman wrote on Balkinization about the distinctions John Ashcroft was hiding behind, and that all coincided with the non-release of 7,000 documents by the CIA, and its revealing motions for summary judgment to justify turning down a Freedom of Information Act request from the Center for Constitutional Rights, Amnesty International, and the New York University International Human Rights Center.

When all this was going on, I was still pouring over the past, still intrigued with how the highly defined tortures that the Torture Council was presiding over, which seem to have been at the Black Sites, had moved to the generalized torture and abuse of the military prisons in Iraq, Afghanistan, and Cuba.

Oddly, it was time for a break. Please forget and forgive that I would take a break from studying torture to study the Albigensian Crusade, take a break from the study of modern evil to study the evil of an extermination in the past. I do actually study other things, and even spent a reasonable period during that time musing over the construction of fractal maps. But it turns out that the history of excuses repeats itself. And perhaps it's no accident that a bumper sticker arrived on the American scene in the 1990's that read, "Kill them all, let God sort it out."

Torture, like the past, repeats itself

The astonishing revelations that have come out of the Bush administration about torture in the last six months point to a well organized effort, and to many of the players knowing full well that the path was leading downward, knowing even, in the case of the CIA, what the consequences were likely to be, but pursuing the path nevertheless, with a sense of righteousness that persists in the public statements as often as reluctant reporters confront officials as to why they did what they did. And while it is perfectly reasonable to consider the effects of dehumanization, control, and anonymity, together with the pressure to get information -- the necessary preconditions for the Stanford Prison Experiment effects, in this case it is also perfectly reasonable to consider another once benevolent power, that as it moved to dominate the world and defend its borders, also moved to disqualify human beings of their humanity on an ideological basis, and rationalized itself, over time, into a regime of torture.

Torture doesn't really work as a method for acquiring information. We've been told that, principally by authors and journalists citing the FBI, or in the FBI's words themselves, over and over for the last several years. Internal memos dating back as far as the 1960's can be found telling ourselves these things. Eventually, they seem superceded by internal memos detailing the hows and whys of torture, then by the public justifications and the splitting of hairs, and finally, the limiting of torture in application, that is the ultimate justification, and the ultimate fallacy.

The evolution of Ad Extirpanda

There is an empire that conservatives, neo-conservatives, liberals, and everyone else in between, constantly draw comparisons to, in the ideological battles over the past 7 years. That empire is Rome. I am going to do the same. But rather than dealing with the transition from republic to empire, from government by the Senate to government by the Emperor, I call your attention to the other Roman empire, the empire after the Catholic church took over the reigns of power, and ruled on the authority of promoting the Good News, and a doctrine of faith and good works, the love of god and neighbor. Were we to see our desires to export democracy as a parallel to the Church's desire to export the Christian faith, we might see this Roman empire as a sharp warning to our efforts. After all, in the name of love, forgiveness, and turning the other cheek, the Church promulgated 6 crusades, an infamous Inquisition, and provided the forces of hatred and prejudice that wracked Europe right up into the Holocaust in the 20th century.

The Cliff Notes version of all that was that someone wrote a book called the Malleus Maleficarum, and then a pope who read it took Europe on a witchhunt, via the Inquisition, that led to centuries of burning witches at the stake. Ignored in that version is the fact that burnings at stakes and the Inquisition, and the whole spiral downwards for that empire of goodness and righteousness, were already complete and in place by the time Heinrich Kramer and Jacob Sprenger ever wrote the Witch's Hammer. Ignored today is the fact that the FBI did not originate the notion that torture doesn't work, either. It was in Church writings at the beginning, not the end, of the descent into inquisitorial hell. As Brian Harrison has documented, in 533 A.D., the Digest of Justinian states

It is declared in the Constitutions that torture should be considered neither as always trustworthy, nor as always untrustworthy. And as a matter of fact it is a fickle and dangerous business that ill serves the cause of truth (etenim res fragilis est et periculosa, et quae veritatem fallat). For there are not a few who are possessed of such powers of endurance, or such toughness, that they scorn the pain of torture, so that there is no way the truth can be wrung from them. Others, however, have so little resistance that they will make up any kind of lie rather than suffer torment; and that can lead them to keep changing their story, even incriminating others as well as themselves.
But then came the era of perpetual enemies. The Church began fighting Crusades in the Holy Land, originally with a papal edict asking Christians to come to the aid of the Byzantine empire against the Turks in 1095. Although the Crusades were to continue for centuries against the Muslims over Jerusalem, on the side, the face of the enemy diversified. There were crusades against Bogomil heretics in Bulgaria and the Balkans (the Tatar Crusade), and against Aragon in Spain. And against the Cathars in Languedoc. The last, called the Albigensian Crusade, is important, because it was against heretics, the non-state actors of their time. It began officially in 1209, and mobilized forces from Northern France and England. But they had been denouncing and burning Cathars, by that point, since 1167. The dehumanization involved in the denuciation looks oddly familiar in some respects. They practiced a religion that was an amalgamation of various influences, most prominently Manichaeanism, itself an amalgamation of Zoroastrianism, Christianity, and Buddhism. As a result, the monastic class, the perfecti, did not eat meat, and practiced strict celibacy, poverty and non-violence. They came to stand for an indictment on the corruption of the Catholic Church, and gained a large popular following in Southern France. They were a challenge to the doctrinal supremacy of the church, and because of different land ownership beliefs, a challenge to the emergent kings of the time, and their refusal to submit, and willingness to perform last rites on each other and go to the stake to be burned, meant they did not, as the often mouthed phrase goes, "have the same concept of death."

By 1219, with the siege of Beziers, they had, in contemporaneous values, been declared illegal enemy combatants. To wit, although chivalry and the codes of ethics of the times seemed to forbid the killing of women, children, and the elderly, with the Cathars, these restraints were overridden by the necessity of removing evil from the face of the earth. Consequently, the origin of the bumper sticker mentioned above, is that siege, when Arnaud Amalric famously ordered his generals, "Caedite eos! Novit enim Dominus qui sunt eius." In English, "Kill them all, God will recognize his own." After the battle, he reported to Rome that he had killed "20,000 without regard for age or sex." The perfecti were hunted down, and in town after town, were burned at the stake, until the last known one was burned in 1311.

Knowledge of where the Cathari threat would next emerge became paramount. As it did so, the question of obtaining that knowledge inevitably came up. And so did the fine print on torture. Confession, and conversion, were supposed to be voluntary, by Church doctrine, and were invalid unless under those circumstances. That meant that torturing Cathari to get them to convert was off the table. But the Catholic Church was clearly fighting a new kind of enemy, one that loved death the way good Catholics loved life. And a one percent doctrine became the norm, with the existence of so much as one heretic the cause for and inquisition, an excommunication, or a siege. The long hard slog to rid the world of beliefs that could not be allowed to exist had begun. Even voices that said diplomacy would work better than war were ignored (Francis of Assisi) or excommunicated (Francis Bacon).

We hear the statements that the Church does not torture. In the 11th century local church councils banned the death penalty for heresy. All during that period, doctrine is debated, and in 1252, Pope Innocent IV issues a papal bull titled Ad Exstirpanda ("until eradication", much like our war on terror seeks eradication of terrorists), defining permissible torture narrowly, as legal when the goal is interrogation, much as Antonin Scalia publicly talked about torture for the purposes of interrogation, and not punishment, being not prohibited by the Constitution. The tortures allowed for interrogation, much like the Yoo memo that narrowed impermissible torture to causing death or organ failure, are to be performed on the heretics, theives and bandits, (ours are against terrorists, and non-state actors), and, they are to be coerced, "although one must stop short of danger to life or limb." It also made burning heretics alive official Church policy.

Demonization and Dehumanization

Demonization and the threat of a perpetual enemy were the cause of the Catholic Church turning on its humane edicts and eventually going against all social and military norms, and adopting the language and the practice of evil. Parsing of the minutiae of when a technique was allowed, when it constituted a banned practice, were also evident. We don't know if anyone made a distinction between forcing and pouring during the Albigensian Crusade, we don't know if anyone purposely set out to devise methods that would conform to the ban on danger to life and limb while allowing the utmost of pain and suffering. We do know that sexual humiliation was performed, the Cathars were sometimes marched naked out to be burned, and were constantly accused of homosexuality, we do know that the threat of death was used, and the threat of death to family members, and burning, and beatings, and withholding of food.

Dehumanization goes on all the time, it is a natural reactive measure like euphemism in its personal, normal version, the use of an abstraction of other, and of treating a collection of people as a crowd, is a very mild form, that is used to insulate the personality from too many emotional attachments and shocks. Out of this can grow the version we usually think of when we think of dehumanization, that of treating the other as less than human, even in an emotional exchange. And from there, the collective version is the demonization of the enemy. Atrocities are a fact of all wars. But there are combined factors of institutional memory and permanent demonization that gnaw on the restrictions that the world periodically puts on the atrocities of war. Institutional and permanent are harsh words. But it takes only about 30 to 40 years for memory to become institutionalized, for the memory of war as a normal state of being to become the only memory of a majority of the population. Permanent is a very short thing for a species that cannot often live past 100 years.

And the world has been here before, has been through the rationalizations, the pouring not forcing, the endless memos, the signed directives, and the descent into pogrom. The descent of the Christian Roman Empire led to exterminations that did not stop until 1945. It began with something very close to "exporting democracy" worked its way through "They hate us for our freedom," and ended in torture and genocide.

Tuesday, April 22, 2008

"Connecting the Dots"

The week before last, ABC News reported that the NSC Principals, Dick Cheney, Condoleezza Rice, Colin Powell, George Tenet, Donald Rumsfeld, and John Ashcroft, engaged in meetings in the Situation Room of the White House, in which they discussed, watched demonstrations, and signed off on techniques and algorithms for interrogation of prisoners in CIA custody that included methods that most of the world recognizes as torture. When he was confronted with the story two days later by Martha Raddatz, President George W. Bush asserted that he knew of, and approved of the meetings and was happy with the results. He stated, "Well, we started to connect the dots, in order to protect the American people."

In a previous posts we have tried to connect the dots with respect to when these sessions started, and how they interleaved with the event list of significant memoranda coming out of the Office of Legal Council in the Justice Department to justify them. But it is also interesting connecting the dots to the more widespread abuses and tortures that appear to have begun at Guantanamo, and migrated to other places, principally to Iraq, especially at Abu Ghraib, and Afghanistan, at Bagram. And, it is interesting to trace the use of psychology and psychiatry, migrating out of the SERE program and elsewhere. And it's interesting to watch how interrogation methods migrated into the show '24' and back out to the interrogation methods that propagated. Many of these migrations were charted by people before the recent revelations, principally by Jane Mayer, but also by Philip Zimbardo, and others. They look quite different now that there is a real place where people plotted the techniques, and the detail of Donald Rumsfeld no longer seems to be his own idiosyncratic management style, but a feature of the Bush administration itself.

The Road to the Torture Councils

While John Yoo remembers getting to work on his torture memos in late March of 2002, when Abu Zubaydah was captured, it would seem that there was a 'high-value detainee' who was captured and tortured before him. That would have probably been Ibn al Shaykh al-Libi, captured in late 2001 or early 2002 (first mentioned as captured by NBC on January 4, 2002). We know this, because, as Jane Mayer documents, James Mitchell, a psychologist formerly with SERE, was on the video tape advising which techniques to try on a 'high-value detainee' in mid-March 2002. Abu Zubaydah had not been captured yet. James Mitchell was citing theory from the Seligman experiment, performed in the 1960's, in which dogs lapsed into a condition of 'learned helplessness' after receiving shocks and perceiving there was no way to avoid them. The psychologist and his partner Bruce Jessen are the subject of an article by Mark Benjamin of Salon detailing how the CIA taught torture to the military. The SERE program techniques, which these two were experts in, formed the basis for the interrogation techniques adopted under Major General Geoffrey Miller, who employed psychologists and psychiatrists to create an interrogation regimen that would produce results, after taking over at Guantanamo. Benjamin notes that the Pentagon ordered all records related to Mitchell and Jessen's firm saved as possible evidence in May of 2007 after an inquiry from Senator Charles Schumer related to prisoner abuse.

So we know that these are probably the kind of people who were advising on the high value detainees at Black Sites, the CIA interrogations. Those were the interrogations that were managed from the situation room, since the CIA insisted that there be sign off from the top. The defense department, at least to date, sought no such cover. We know that Donald Rumsfeld approved of tactics for use at first at Guantanamo, and that he was also involved in the Torture Council meetings. We learned that he sought a memo of his own, similar to the 'Golden Shield' memo authored by John Yoo and signed by Jay Bybee, and got such legal sign off in October 2002. So it is tempting to believe that there was a slippery slope from a few high-valued al Qaeda detainees tortured at the instructions of the President and his advisors, to the wider abuses that ended up being showcased in the images from Abu Ghraib which became public in the Spring of 2004. In fact, this scenario was on display in media after the Yoo memo became public a few weeks ago.

Except that it doesn't fit all the facts. Also in Jane Mayer's piece, The Experiment, is the fact that Col. Louie (Morgan) Banks, a Ph.D. level psychologist who is also connected with SERE, was at Bagram in November 2001 to advise there. His resume, quoted in the piece, states that he "provides technical support and consultation to all Army psychologists providing interrogation support". In 2001, the 'high-valued detainees' had not been captured, the decision to put prisoners at Guantanamo Bay hadn't been made, or yet officially discussed. While Banks is emphatic that he never taught SERE tactics for use in interrogation, this indicates that professional psychological advice on how to make prisoners talk was being sought and provided to the military well before any memos 'exempting' anyone from Geneva or the U.N. Convention Against Torture had been written (in January 2002), before any torture memos had been written, and maybe before the NSC Principals had met to approve CIA tactics blow by blow.

From the CIA to Guantanamo

The dots that need to be connected to bring techniques to Guantanamo Bay are a bit more confusing. They go something like this:

The decision to move 'high-value detainees' to Guantanamo, and supposedly out of reach of both U.S. and international law was made in late 2001, early 2002, and the prisoners were sent there beginning January 11, 2002. It is not known whether they were genuinely believed to be all 'high-value detainees' at that point. That is what they were billed as, though. Meanwhile, as we mentioned above, attempts to get intelligence from prisoners using psychological techniques were already underway in Afghanistan, and note that the dates coincide with the capture of al-Libi, and with the memos declaring first al Qaeda and then the Taliban to be not eligible for any Geneva Conventions protection, not even common Article 3. During the next several months, legal documents are prepared for covering torture of the CIA prisoners, and advice from Mitchell and Jessen is among that entertained. This is the program that the Torture Council is known to have presided over. Then in the latter half of 2002, the Pentagon, Donald Rumsfeld in particular, and others from the White House and the Vice-President's office, become interested in getting more information from the prisoners at Guantanamo. Corresponding memos are in the process of being drawn up.

But rather than the trail being a simple transfer of interrogation methods from those used in the Black Sites, it works like this: A team of White House and Defense lawyers, including David Addington, Jim Haynes, and Alberto Gonzales, visit Gitmo, and encourage the interrogators there to come up with a list of harsher methods and submit them to the Defense department. They are compiled by a staff lawyer there named Diane Beaver, who sends them to Washington, never realizing that her name will be left on them, and that the Pentagon will use this memo to assert later that they approved the tactics because the interrogators asked for them. Then Rumsfeld, with the new legal backing obtained by Jim Haynes, approves a list of methods. The list goes back to Gitmo, but the General in charge there balks at exceeding the Geneva Conventions. So he is replaced with Geoffrey Miller, who brings in the psychologists and psychiatrists, and creates his interrogation system. But where did the list come from, then? Diane Beaver asserts that the interrogators got a lot of their ideas from the TV show '24'.

Does that mean that they came from complete fiction? Well, no. Howard Gordon, the principle writer for the series, keeps a copy of the Kubark manual on his desk, one source of inspiration. That wouldn't need to be unusual, given that there is a drive toward realism in such shows. '24' is a bit special though, the creators are a conservative and friend of Rush Limbaugh's, and collaborator of Roger Ailes named Joel Surnow, and his partner Robert Cochran is a law school graduate who believes in the "Doctrine of Necessity" justifying torture under the Constitution and making it legal to bypass the Convention Against Torture. Perhaps a whole new article like that done by the New York Times on the Military Analysts could be done with regards to ties between '24' and the government, as well. If you want to see some names, watch the conference, put together by Supreme Court Justice Clarence Thomas' wife Virginia, held at the government Ronald Reagan Center, hosted by Rush Limbaugh, and featuring, among others, Homeland Security Secretary Michael Chertoff, entitled (and I kid you not): "24" and America's Image in Fighting Terrorism: Fact, Fiction, or Does it Matter? The creators of the show even got a White House luncheon and a tour, which included the Situation Room, which Surnow found less exciting than the CTU room on his show. I wonder if anyone in the crowd was aware that the real tortures were drawn up and managed there, how real a tour can you get!

Matching up the chronology of '24' with the progress of torture out into the various military prisons is filled with eerie coincidences, like the instigation of a prison riot followed by disobeying orders in an abusive interrogation on Season 3 4pm - 5pm, which coincided nearly exactly with the riots endured by the Americans at Abu Ghraib, and many of the prisoner abuses there, in November of 2003. Of course, the sequence in the show was filmed well before that date, and there really isn't a connection, maybe. Jane Mayer documents that military interrogation experts complained to the producers of the show that their tactics were circulating in Iraq. As one of the experts said, “People watch the shows, and then walk into the interrogation booths and do the same things they’ve just seen.”

The Kubark manual, which Howard Gordon consults in writing the series, is from the CIA. It was written in the 1960's, updated in 1983, and declassified in 1997, and details methods including sensory deprivation, threats and fear, threats of death to the prisoner or someone close to them, and debility, which includes exposure to extremes of heat and cold, and deprivation of food or sleep. It also documents use of pain and threats of pain, hypnosis, making the prisoner believe he has been drugged, drugging prisoners, and how to deal with a prisoner once his psyche has begun to crumble and he is regressing too a childlike state. How familiar these tactics sound!

From Guantanamo Outward

Geoffrey Miller's team is largely credited with migrating the tactics from Guantanamo to Iraq and Afghanistan. Indeed, the recommendations were made to Colonel Pappas in Iraq by Miller's team, which also pressured Lt. Gen. Sanchez about their use, which precipitated another round of asking the interrogators for tactics, which produced tactics that had possibly already been in use, combined with the new ones from General Miller. Miller enunciated that "You have to treat the prisoners like dogs. If...they believe that they're any different from dogs, you have effectively lost control of your interrogation from the very start...And it works. This is what we do down at Guantanamo Bay." (Zimbardo, The Lucifer Effect, p. 414, quoting General Janice Karpinski). Note that Seligman's dogs have reappeared. The direct involvement of professional psychologists is evident throughout, regardless of whether it is the 'high-value detainees' and the Torture Council, the initial interrogations at Bagram before Camp X-Ray existed, the CIA manual that fed '24' and subsequently informed Donald Rumsfeld's tactics list, or the final product being sold by Major General Geoffrey Miller.

And the high level involvement surfaces in the military interrogations as well. Although the military did not, apparently, follow the CIA lead and require Torture Council meetings and presidential sign-offs, although the started to in 2004 as memos began to be rescinded, apparently the people at Tier 1A in Abu Ghraib prison, who were informing the MP's on 'softening up detainees for interrogation', had periods of confusion due to Rumsfeld snowflakes that were written for Guantanamo. "I think it became confusing. I mean, we found in computers at Abu Ghraib SECDEF [Secretary of Defense Rumsfeld's] memos that were written for Guantanamo, not Abu Ghraib. And that caused confusion." (Zimbardo, The Lucifer Effect, pp. 414-415, quoting general Paul Kern).

And that is why some believe that the situations for degenerating into abuse and torture at Abu Ghraib and Bagram were deliberate. At every step of the way, psychologists and psychiatrists whose specialty was interrogation tactics gave advice, and quoted from famous psychological experiments. The Schlesinger report contains an appendix detailing the Stanford Prison Experiment (Zimbardo, The Lucifer Effect, p. 401). Experts were being consulted. Pol Pots techniques were being resurrected and perfected. And even when the source was fictional, as it was for the interrogators at Guantanamo, as it is for Virginia Thomas and Rush Limbaugh, and for Antonin Scalia (although perhaps he was only thinking his way through lethal injections and pain), and Michael Chertoff, it was from psychological studies of interrogation, dating back to the 1960s, and prepared for the CIA.

Sunday, April 20, 2008

Too Unpopular to Talk About?

Today, Sunday April 20, the New York Times broke their silence and wrote a lead editorial on the torture revelations on ABC News and the AP, which occured on April 9,10, and 11. Actually, they had mentioned torture as one of the items on which the Bush administration had over used their authority to keep information secret on April 18th.

It is difficult to understand the reluctance of the mainstream press to talk about the revelations that the NSC Principals micromanaged tortures and debated which methods to allow and in what combinations and orders. It is difficult to understand why they subsequently said nothing when the President told Martha Raddatz that he knew of the sessions and approved of them.

Perhaps torture just isn't popular enough to spend time on the radar screen?

In order to understand the popularity of torture, I looked at the ratings and running times of movies released to theaters on the Iraq war, the 'War On Terror', and torture and rendition. It is clear that when the run of these movies first appeared over the horizon, people thought that Hollywood had decided that the American public wanted to see them, and that this would produce shockwaves. But the run produced almost instant bad results. Thus, in November on Alternet, Sari Gelzer opines,

This long set of Hollywood films and documentaries are heading to theaters on the assumption that audiences are willing to see them. Perhaps producers and distributors have read the numbers released in a mid-October CNN poll that say 65 percent of Americans oppose the U.S. war in Iraq, while a CBS poll of the same time frame declared that 45 percent of respondents want U.S. troops home in less than one year.

With strong sentiment against the war, it would seem reasonable to assume that these films would be successful, especially as many of them feature megastar Hollywood talent. But the jury isn't in yet. In the Valley of Elah received favorable reviews, but it has not been a box-office hit. Neither has Rendition, which was not favorably reviewed. But many more of these films are slated to run from now and well into 2008.

The series of movies would continue, and does continue, with the currently showing film Stop Loss. For movies strictly about torture and the abuses committed in the 'War on Terror', the two screened at theaters were Rendition and Redacted, the latter not about prisoner abuse, rather violations of the laws of war with respect to civilians (rape).

Eugene Novikov discussed the bad showing of the 'War on Terror' movies, including these two, on March 26th. His analysis is that they didn't actually do too badly, and that the revelation that the American public had universally rejected critical movies about the war and about torture, rendition and abuse was not salient based on box office receipts. But even he looks at some of the movies and decides that the American public doesn't want to see these things on their screens:

....And the $60,000 tally sure doesn't look good for Brian De Palma's Redacted, a particular target of Bill O'Reilly's hectoring. But think about it: how do you market a movie about the rape of an Iraqi girl by American soldiers? A movie that basically sets out to lecture, shame and outrage the audience? Maybe it could have fared a little bit better, but I don't think it was ever going to be any sort of hit. The vast majority of moviegoers simply don't go to the movies to see what Redacted had to offer, regardless of whether its message was liberal, conservative, communist or neutral.
It's a universal that when media doesn't cover a news item, it is because the American public didn't want to hear it. It is a universal, even among sympathetic critics, that if a movie didn't do well at the box office, no one wanted to see it. For some subject matters, particularly wrenching ones like those shown in Rendition or Redacted, it is a foregone conclusion that people just do not go to the theaters to be lectured to, or see depressing topics, they go to take a break, to feel good. Or do they?

Rendition had a 4 week run. It initially opened in 2,250 theaters, and grossed $2,421 per theater in its first week. By contrast, a popular film like Horton Hears a Who opened at 3,954 theaters, and grossed $15,533 per theater. Initial weeks of movie sales are dependent on the build up for the movie (advertising, collateral offers and products, general buzz in the media, and endorsements), but also, critically, on which theaters carry them, on how many screens. Remember, the first week's gross is on those who see the movie without hearing about it from friends and others, a fact used when they release an expensive blockbuster that they think might fail: They release it to so many theaters, with so much build up, that it has made back its investment before anyone discovers the movie isn't worth seeing.

Likewise, Redacted opened at 15 theaters, at $2307 gross per theater. What does this mean?

These statistics, from Box Office Mojo, are the number of theaters, not the number of screens. In an old style theater, the number of seats might reach as high as 500, because these theaters were converted, from playhouses and opera houses. Our local repertory theater has 584 seats, and were it a movie theater, would probably lose no more than 40 of those. Modern theater multiplexes, like AMC theaters, or Century theaters, have many screens, often 10-20 of them, with seating per theater at about 1oo-200 seats or so. If you look at $10 per ticket as a reasonable back of the envelope for these movies, you are talking filling 2 of the multiplex audiences, or half of a 'traditional' theater, in order to get this gross on the first week. To gross the $15,533 of a Horton Hears a Who, you need to be playing on more than 10 screens at the multiplex, or the ticket prices must be higher.

So is Redacted not the kind of movie the vast majority of movie goers go to see? Is Rendition a bad movie, or is it not what the public wants to watch? I would have to say the jury is still out. Rendition played for 4 weeks, Redacted for 5. Redacted actually got the kind of box office scores it got because it never played in more than the 15 theaters it played in its first week. And those theaters where it was playing were either showing it on one or two screens at the multiplex, or it was playing at single movie 'traditional' theaters. At any rate, a decision was made that it wasn't what people wanted to see without putting it to the test. Likewise, Rendition showed at a respectable number of total theaters, but at least on average, showed at perhaps one or two multiplex screens, or in 'traditional' theaters only. It wasn't shown very long. Word of mouth would have been just starting by the time it was difficult to find a theater that showed the movie, the experience we had with it in our town.

As it is with the media and torture, so it is with the entertainment industry and torture. The American people do not want to see it, we are told. But the American people do not get that choice. When it doesn't show up in the news, American people are unaware that news has been generated on the subject. When it plays at only a handful of theaters on a couple of screens, it may as well have never shown.

How does it do on TV? There have been a large number of documentaries, docudramas, and movies that have shown to the cable audience. The Road To Guantanamo, Torture: The Guantanamo Guidebook, Torture: The Dirty Business, The Ghosts of Abu Ghraib, Strip Search, along with documentaries on Frontline and 60 minutes. Rumor has it that Taxi to the Dark Side will air eventually. And then, from a completely different point of view, the fictitious series '24', which Jane Mayer documented so well. The latter had a high at an estimated 16 million viewers.

For a subject that no one wanted to hear about, it gets quite a bit of air play. Either it is a subject that filmmakers can't stay away from, even though they have no audience, or it has an audience but the mainstream line on it is that it does not.

What does this produce? In that Times editorial, The Torture Sessions, the authors opine that,

At this point it seems that getting answers will have to wait, at least, for a new Congress and a new president. Ideally, there would be both truth and accountability. At the very minimum the public needs the full truth.

Some will call this a backward-looking distraction, but only by fully understanding what Mr. Bush has done over eight years to distort the rule of law and violate civil liberties and human rights can Americans ever hope to repair the damage and ensure it does not happen again.

Funny. In April 2005, three years ago, Human Rights Watch documented tortures at Guantanamo Bay, in Iraq, in Afghanistan, and at 'secret locations', and alleged "It is widely reported that some of these “disappeared detainees” have been tortured through techniques such as “waterboarding,” in which the prisoner’s head is submerged into water or covered with a wet cloth until he believes that he is drowning." They called for an independent investigation of the administration, and of commanding generals involved.

What the American people didn't want to hear has apparently cost 3 years of lost time getting to investigate those who torture. The Congress could start the investigation any time, even tomorrow, should they choose to do so, the notion that there isn't enough time left in this administration or in this Congress belies the fact that should it decide to, the work can become the business of the next Congress. There are infinite excuses why no investigation ever occurs, and the latest seems to be, "Wait for the next administration." We waited through nearly the entire term of the president elected in 2004, and through almost two congresses.

But news media that aren't interested in covering it, congresses that aren't interested in investigating it, and movie theaters that aren't interested in screening torture are not the same as the American people not wanting to know. The only way to find out the latter, is to tell them about it.

Tuesday, April 15, 2008

Taking a Break From Euphemisms

This morning I saw Marty Lederman's reference on Balkinization to an essay, Euphemism and American Violence, by David Bromwich in The New York Review of Books. An important warning about how it is that a society can become inured to horrible practices, and to how our society is being purposely led to believe that the horrible is something else entirely.

On the subject of the purposeful euphemizing of torture, and the use of endless discussions and excuses, and tough phrases that never really get down to what torture is, Bromwich writes,

It would be hard to find a precedent for the sophistical juggle of these explanations. The secret in plain view was not a judgment about present or future policy, but an imposed acceptance of something past. President Bush, in 2002 and later, sought and obtained legal justifications for ordering the torture of terrorism suspects, and it is known that American interrogators used methods on some suspects that constitute torture under international law. If these acts had been admitted by the attorney general to meet the definition of torture, those who conducted the interrogations and those who ordered them, including the President, would be liable to prosecution for war crimes. Because the legacy of the Nuremberg Trials remains vivid today, the very idea of a war crime has been treated as a thing worth steering clear of, no matter what the cost in overstretched ingenuity. Thought of a war crime does not lend itself to euphemistic reduction.

Yet "waterboarding" itself is a euphemism for a torture that the Japanese in World War II, the French in Indochina, and the Khmer Rouge, who learned it from the French, knew simply as the drowning torture. Our American explanations have been as misleading as the word....
Would harsh language, devoid of euphemism, be closer to the truth? In point of fact, euphemism, as a form of metaphor, is a mechanism for understanding the world. Internally, our mind insulates itself from pain by digesting it, by finding comparisons and analogies that help to put the painful situation into a context of less painful experiences. Were this never to happen, or were our experiences to be so painfully different from all that we have as experience elsewise, we'd all be walking around with PTSD.

But it is quite another thing to insulate ourselves from painful experiences that are not our own, and still another to insulate the public from painful experiences that one is delegating to others to commit on those whom the public shall never see. Had pictures not surfaced from Abu Ghraib, the occasional photograph of a prisoner, called detainee in the language of euphemism, could be explained away as the face of evil, as pictures of a post torture Abu Zubaydah frequently are.

Torture is not supposed to exist. Its victims can never be insulated from its effects, torture victims have been studied who are still in physical and emotional pain 40 years after the event. And because it is not supposed to exist, euphemisms for it, expressions like enhanced interrogation, meant to dull the public sensibilities, are not supposed to exist, either. And maybe that's what the news blackout is all about. In our heart of hearts, we do know that there is a cruelty that is done to people, that ancient horror, that inquisitional practice, and we do know it is very wrong. And people who are supposed to be respectable, like cabinet officers and presidents, couldn't possibly do that.

So in honor of David Bromwich's argument that euphemism allows violence, a brief respite from
euphemism in the discussion of torture. More complete descriptions can be had at the Physicians for Human Rights site, in their report, Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality or many of the informative articles in the journal Torture.

Stress positions. These are either painful positions in their own right, or positions that become intensely painful after they are forced to be held for many hours. Even standing still becomes painful, as Leave No Marks quotes, “the ankles and feet of the prisoner to swell to twice their circumference,” “the skin to becomes tense and intensely painful,” and “large blisters develop which break and exude watery serum”, and usually the prisoner develops, “a delirious state … delusions and visual hallucinations." Donald Rumsfeld famously talked about standing at his desk for 9 or 10 hours a day, deprecating this as a form of torture. Donald Rumsfeld wasn't constrained not to move. Worse can happen. In cases reported of extraordinary rendition, people are kept in cells too small to move or change position, often for extended periods stretching into weeks.

Mind Altering Substances. These are, quite frankly, drugs. 'Truth sera' used to lower inhibitions and induce talkativeness, mind altering substances to enhance other techniques and increase disorientation, or maybe scopolamine: "Normally it is introduced into the body by a transdermal patch or intravenously in the arm. However, if you inject it into the spine (amount classified), it causes absolutely incredible pain, accompanied by violent convulsions and seizures," bragged one 'interrogation expert' from Guantanamo.

Beatings. This is a broad category, and includes some of the 'techniques' that were discussed at the Principals' Torture Council meetings at the White House. John Kiriakou mentions belly slapping on Abu Zubaydah, there were some famous homicides at Bagram due to a tactic called common peroneal strike of kicking hard downward on the prisoner's thighs, causing blunt force injuries to the soft tissue there. As the PHR report stresses, even titles like belly slap are euphemisms of a sort: accurate descriptions that fail to mention how hard or how often the slapping is done. Bellies are filled with vital organs after all, injury to any one of them is a serious threat to health. Both stress positions and beatings can cause rhabodomyolysis, a breakdown of the muscles that releases poisons into the blood stream, leading to kidney failure.

Extreme Heat and Cold. Once again, the title is often accompanied by a euphemistic description of turning an air conditioner down and up. It's a little more variable than your average comfort unit. In some cases, extreme cold means being wet with water, then exposed to the out of doors in the winter time with little or no clothing. Initially the body compensates with elevated blood pressure and pulse, shivering activity. As the body begins to decompensate, the mind begins to shut off, the circulation becomes sluggish, the heart is under stress and is cooled. The damage includes damage to insulin use, excess strain on the cardiovascular system, and clotting which can lead to pulmonary embolism. Heat goes the other way, with extremes causing strain from water and electrolyte loss, syncope, and as the body begins to decompensate and the core temperature rises, the chemicals that the body is made of begin to denature, that is, they come apart, and the body starts to poison itself. As muscle cells come apart, they release chemicals into the blood stream that poison the kidneys, similar to the effects of beatings. Brain chemicals which come apart can cause seizure. At that point, called heatstroke, many people do not survive even if given immediate medical care.

Sleep deprivation. This lovely technique is essentially interruption of sleep. Or it can take the form of forcing the prisoner to stay awake for periods of two days or more. The brain needs sleep or it will become imbalanced. Lack of sleep leads to hallucinations, and interruption of normal cognition and memory. Severe lack of sleep can aggravate depression, and cause suicidal anxieties. In addition, any such extreme psychological stress interrupts processes that rejuvenate the brain and allow for complex memory and thought formation. It has lasting side effects: the PRH document lists changes in glucose processing and insulin tolerance, as well as high blood pressure and heart disease as side effects.

Sensory Deprivation. Sensory deprivation causes hallucination and psychosis. Jane Mayer described some of the effects in her article The Black Sites . In days, the prisoner's psyche collapses, and the prisoner becomes dependent on the interrogator as a child would be upon a parent. It seems innocuous. No one is beaten, no water is poured on a person's face. But in experiments, the majority of the subjects elected not to continue with the experiment, even though forfeiting rewards (Leave No Marks, p. 42). It is not a pleasant experience to lose one's mind, even if it might be hard to articulate that while it is happening. And that's for days.
The Department of Defense authorized the use of sensory deprivation — in the form of deprivation of light and auditory stimuli and isolation extended beyond 30 days — for use by the military in Guantánamo in 2002. The ICRC reported that detainees in Iraq frequently alleged that they were subjected to isolation — often combined with other aggravating circumstances — during interrogation (Leave No Marks, p.42).
There are many other tactics used, the Defense Department authorized 14 in all in 2003, it is unknown how many were authorized for the CIA, or how many the Torture Council presided over. This is only meant as a sampling, and a defense. A defense against the euphemism that David Bromwich speaks. It is useful to remember that these techniques cause a lifetime of pain some physical, some mental, and sometimes cause early organ failures. Where rhabdomyolysis is involved, kidney dialysis is needed in most of the former victims. Mental effects start with clinical depression, and range through all the varieties of PTSD. Physical damage can lead to permanent pain in the hands and feet.

But that doesn't mean we should hide behind a news blackout, it doesn't mean we should hide behind euphemisms like 'enhanced interrogations'. We should, instead, insist that the full horror be there, and if it is too much for the governing class to handle so much pain, then perhaps they should not order it, or make it possible. If you are talking about earphones and blackout goggles, you should be willing to talk about breaking a man's mind, and leaving him screaming silently inside as his personality and psyche falls apart. Or better still, you should be talking about banning it.

Monday, April 14, 2008

The Evolution of Extraordinary Rendition

As part of a two-day seminar program at the Duke University School of Law entitled "Combating Terrorism: Charting the Course for a New Administration" a session held on Friday morning, April 11, addressed extraordinary rendition. On the panel was Michael F. Scheuer, who is now an Adjunct Professor of Security Studies at Georgetown University, but for 22 years prior to that was at the Central Intelligence Agency. While at CIA, Scheuer is credited with starting CIA's extraordinary rendition program. In extraordinary rendition, suspects are captured in one country and then moved to another country where they are held and interrogated by local intelligence authorities.

Writing in the News & Observer, Jay Price notes that Scheuer claimed that extraordinary rendition is "the single most effective counterterrorism program in American history". According to Colin Freeze of the Toronto Globe and Mail, "100 to 150 people have been rendered to foreign prisons by the U.S program".

Price reports that Scheuer started the program in July, 1995 under President Clinton:

Under Clinton, the program was different, he said. For one thing, there was little interest in information gleaned from interrogations.

CIA officials thought the country doing the questioning would alter the information to deceive the United States. Also, it had become clear that al-Qaida operatives had been trained to give either bad information or huge volumes of facts that were accurate but so dated that the United States would waste time investigating them.

So instead of interrogations, the CIA tried to get documents in either tape or digital form that the operatives might be carrying with them, Scheuer said.

Freeze notes that the program changed under the Bush Administration:

After 9/11, the Bush administration decided to enhance Mr. Scheuer's pre-existing rendition program with international "black-site" prisons where U.S. officials would lead interrogations in secret CIA jails. "I am much less experienced in the Bush administration," Mr. Scheuer conceded. "I ran rendition operations from July '95 until June of '99."

Speaking at Duke, Mr. Scheuer did put some distance between the program he hatched in 1995 and events that occurred after 2001. "The bar was lowered after 9/11," he said.

Despite lamenting the lowered bar, Scheuer seemed quite sanguine about the torture occurring in these foreign jails. Again quoting Freeze:
Mr. Scheuer didn't dispute that torture has occurred in foreign jails where the United States sent suspects - "You'd have to assume that 80 per cent [of prisoners rendered to Egypt] are not going to have a good time," he said - but said simply that he didn't particularly care. "I'm perfectly happy to do anything to defend the United States, so long as the lawyers sign off on it," he said.
The shocking criminality of being "perfectly happy to do anything" should not be overlooked. Again, this program is clearly hiding behind what "the lawyers sign off on" for its coverage. As the Yoo and other memos come to light and undergo legal analysis, the legality of this and other torture programs comes further into question.

The true tragedy of extraordinary rendition comes to light when one realizes that despite assurances that it targets only high level terrorism suspects, innocent people have been caught up in this program. The case of Maher Arar illustrates this point. According to Freeze:
In Canada, rendition has become synonymous with the process that resulted in Ottawa's Maher Arar spending a year in a Syrian jail, where he was beaten with electric cables during the first phases of his captivity. Canadian officials have apologized to the telecommunications engineer and compensated him with $10-million (U.S.), upholding that he was wrongly smeared in intelligence exchanges emanating from Canada, prior to the U.S. decision to render him.

The Bush administration has proven far less contrite in the Arar affair and similar cases, blocking lawsuits on the grounds that probing rendition would illegally spill state secrets.

The Arar case once again points out the folly of using the "war on terror" as an excuse to discard hundreds of years of legal precedence for habeas corpus and the Geneva Conventions. Price provides some closing thoughts from the panel:
Others on the Duke panel said that rendition may be effective in the short term but that any rational evaluation of it would require considering long-term effects that may be hard to quantify -- such as the erosion it causes to the reputation of the United States abroad.

The program should be shut down, said Aziz Huq, an expert on detention cases involving national security who is with New York University Law School. Huq said it is corrosive to democratic government in places such as Egypt and Pakistan, where proper governments are crucial in long-term efforts to fight terrorism.

Sunday, April 13, 2008

Did the White House Learn by Doing?

A speculative article, but in the absence of any investigative reporting by major news outlets, in fact, any reporting at all, someone must ask the questions.

More Timeline

Abu Zubaydah was apprehended in Pakistan on March 27, 2002. John Yoo recalls having started working on the memos, "I think, in March, when Abu Zubaydah was captured. That's what provoked the question." He reports that the draft was finished in August (it was signed by Bybee on August 1, 2002), but "we would show drafts before." "They were taking action?" "They needed to have a sense before it was finalized what the basic outlines are." When asked if he had weeks or months to create the document, he replied "weeks".

We map this first onto remarks by Donald Rumsfeld, keeping in mind that Rumsfeld is in the NSC Principals group: April 2nd, Rumsfeld announces the capture of Abu Zubaydah. On April 3rd, Donald Rumsfeld says, "He will be properly interrogated by proper people who know how to do those things...we intend to get every single thing out of him to try to prevent terrorist acts in the future. And if any responsible government official who had any goal other than trying to stop additional terrorist seems to me that I've got it exactly right. I've got first things first, and anything else comes a clear tenth, eleventh, or twelfth." On April 12, he says, "Abu Zubaydah. He had holes in him and he had some infections and he was not in great shape, and he obviously talked when people asked him questions and he said this, that and the other thing. Has he started to give any intelligence? I would assume so, but anything useful? It's not clear yet. And I don't know that I want to get into daily reports on it. But his health is improving." Ron Suskind would later quote a CIA official as saying "We got him in very good health, so we could start to torture him" (The One Percent Solution, p.100).

One other track is moving at this time: Although President Bush had made noises about withdrawing from the International Criminal Court early in his administration, on April 27, one month after Zubaydah is captured, "weeks," in other words, John Bolton, who is working in the State Department on policy related to North Korea, drafts a letter to the Secretary General of the United Nations, announcing that the U.S. will not ratify the treaty (the Rome Statute), and asking that the U.N. record reflect that, in other words, withdraws President Clinton's signature from the statute. It is received by the U.N. and announced on May 6th, Bolton later saying, the "happiest moment at State was personally 'unsigning' the Rome Statute."

And Ron Suskind reports (p. 115),
Choices made, Zubaydah now recovered, it was time, in May of 2002, to test boundaries.

According to CIA sources, he was water-boarded,...He was beaten, though not in a way to worsen his injuries. Hw was repeatedly threatened, and made certain of his impending death. His medication was withheld. He was bombarded with deafening continuous noise and harsh lights. He was, as a man already diminished by serious injuries, more fully at the mercy of interrogators than an ordinary prisoner.
The Principals Meetings - Were they on the phone?

But by whom? The final document subsequently known in the CIA as the "Golden Shield" is two months away. The AP follow up to the ABC News scoop reports, "
The principals eventually authorized physical abuse such as slaps and pushes, sleep deprivation, or waterboarding....'No one at the agency wanted to operate under a notion of winks and nods and assumptions that everyone understood what was being talked about," said a second former senior intelligence official. "People wanted to be assured that everything that was conducted was understood and approved by the folks in the chain of command.'" Simultaneously, John Kiriakou tells Brian Ross,
Absolutely. Absolutely. I remember-- I remember being told when-- the President signed the-- the authorities that they had been approved-- not just by the National Security Counsel, but by the-- but by the Justice Department as well, I remember people being surprised that the authorities were granted. And I remember-- one of the agency's senior-most leaders saying, "This is-- this is an awesome responsibility, that we have to act within the confines of the law. This isn't gonna be something that's being done willy-nilly, that people are gonna be trained in it. And we have to follow this to the letter."
So when the decision was made to first do the slap of Abu Zubaydah the permission for that came specifically from Washington?
Yes. Absolutely.
There was discussion. It wasn't just a cable came in, "Can I slap him?" and the answer is "Yes," and the cable goes back out saying, "Yes." There was discussion. "Should we slap him? What's to be gained if we slap him? Is there gonna be any fallout to slapping him?" Everybody talks about it. The Deputy Director for Operations says, "Yes, you can slap him." The cable goes out. They slap him. Send in a cable again saying, "We slapped him, and this is what happened." And if that works, great. If that doesn't work, well, maybe we shake him by the lapels the next time. And you go through the whole process again (pp. 41-43 of transcript).
That sounds like an online approval process. Combined with the ABC News information, like supervision of an actual torture session.

A draft of a memo authorizing torture. [Not an opinion mind you, John Yoo characterized it as writing "statute", that is, writing law. Statute normally applies to law passed by legislatures, or to edicts handed down by a monarch. It is written law, as opposed to common law.] A discussion procedure that included demonstrations by experts, attended by decision makers and lawyers. A sanction by the President, knowledge, approval, and in some cases signed orders. A signature withdrawn from a treaty which would allow prosecution of war crimes and crimes against humanity in a permanent international court of law.


In October, November and March, these authorizations would be propagated to the military, to Maj. Gen. Geoffrey Miller who took over control of the Guantanamo prisons. If the ABC and AP records are correct, the Principals meetings were still going on, and still involved in detail. Nearly identical forms of unstructured abuse would propagate from Guantanamo, to Abu Ghraib, to Bagram, always after visits from Miller. And Jane Mayer would later report on very advanced techniques used at Black Sites, techniques taken from the SERE program and refined.

The news looks eerily, naggingly, like the Principals, with full knowledge and approval from the President, may have actually directed torture sessions on at least one detainee, up to the level of waterboarding. The questions surrounding the deliberateness of the situations created by Miller are still unanswered, and the question of how and when the perfections were done for the Black Sites hasn't even been asked in media.

When John Conyers convenes his sessions, whether the fact finding session on May 6th, or more serious sessions if they occur, someone should ask how much personal experience and intimate knowledge of torture techniques is resident in the White House. And then they should ask, "Who's your shrink?"

Saturday, April 12, 2008

The Campfire and the Three Hani's

The Roots of the Torture Memos

With the revelations that the NSC principals, top cabinet level members of the Bush administration, met repeatedly and went over techniques and torture scenarios in detail, and the subsequent revelation in an interview yesterday with ABC that President George W. Bush both knew of the meetings and approved of them, the origin of this apparatus, this systematization, this state sanctioning of torture need to be ferreted out.

Much of the material coming out now centers around 2002: In January, opinions were solicited from the OLC about whether or not the Geneva Conventions and the U.N. Convention Against Torture and Cruel, Inhuman and Degrading Treatment (CATCIDT) applied first to al Qaeda, and then to the Taliban. These opinions were available to President Bush in January, as the government sought to figure out what to do about prisoners captured in Afghanistan, and President Bush issued a pair of memos denying first al Qaeda, then the Taliban, both the protection of prisoners of war, and the protections of common Article 3. The latter is important, because when the Supreme Court issued it's Hamdan v. Rumsfeld decision, Justice John Paul Stevens relied on both common Article 3 and the Hague Conventions of 1907 in writing the majority opinion, leading to a wave of anger amongst Bush supporters that Americans were being subject to foreign law, which ultimately led to the Military Commissions Act, which John McCain sponsored in 2006, and its immunizations against war crimes and restriction of the Torture Act.

The next event was the capture of Abu Zubaydah in late March. He was wounded in the capture, and needed to be nursed back to health before interrogation. The timeline then puts him as uncooperative, leading to the high level meetings, first, and then the request for, and subsequent composition of the Torture Memos, the first of which was signed by Jay Bybee on August 1, 2002. On the ground, Zubaydah's capture roughly coincided with the U.S. fiasco at Tora Bora, which now turns out to have been influenced by both a battle for control of operations between DoD and CIA, and by drawing off troops in preparation for an invasion of Iraq, a scenario that had not yet been broached with the Congress or the American people. Bin Laden and Zawahri had slipped away, and rumors had them traveling by boat down the rivers through Pakistan to parts unknown, or bin Laden was dying from lack of dialysis, or any of a number of different rumors and conjectures. It isn't clear yet, but if I had to guess, I would put the discussions of torture descending from the abstract to the concrete in May/June 2002.

The Muslim Bomb and the campfire

But how to extend the timeline in the other direction? Why were the gloves off already by January 9, the first date attached to the memos removing Geneva Convention protections?

Actually, the gloves came off for some almost immediately after September 11. It is a separate issue what people thought before that, given that there were some in the administration who had declared it the destiny of the United States to move from republic to empire before George W. Bush took office. We are not talking about that, for now, because there isn't evidence of a move away from international law except for the move away from the International Criminal Court prior to September 11.

The key events stressed by Ron Suskind in The One Percent Doctrine are the meeting around the campfire, and the anthrax mailings, both in late 2001. The anthrax mailings are well known and discussed, so the influence of the campfire meeting is key - key to the attitude in the government, key to the One Percent Doctrine, key to the ticking bomb theories, and interestingly, perhaps key to the NSA data collection methods: The placement of a single individual in two roles leads automatically to conflation of the roles. Whether or not that is a valid assumption, the doctrine led to processing the worst case scenario into a reality, and from there, most likely, into the Torture Council.

The CIA had learned that two people had met with bin Laden and Zawahri around a campfire in Kandahar province in Afghanistan in August 2001. They were Bashiruddin Mahmood and Abdul Majid. They are two scientists from Abdul Qadeer Khan's Pakistani nuclear program, and were among the Islamic radicals around the Pakistani ISI chief Hamid Gul [Interestingly, the now retired Hamid Gul is a now a fervent supporter of the secular lawyer's movement in Pakistan]. These people were all supporters of the Taliban and of bin Laden, who had sworn an oath, with others, to protect the Taliban in January 2001, so their presence among the Taliban and with bin Laden should not have been surprising, but the CIA suspected the subject of the meeting to be discussions of nuclear weapons, and in that, one cannot fault them. The principals, and in particular Vice President Cheney, became aware of this meeting in early October 2001 (Ron Suskind's book, pp. 27, ff.).

From what I can glean in Suskind's book, and from the character of the memos, it appears that pulling out all the stops had meant extensive collaborations between the FBI and the CIA, and had probably meant either violating or planning to violate FISA almost immediately after September 11, but talk of torture started within the CIA after the people at the top had been informed of the campfire meeting, and during the anthrax scare, in late 2001. That all the forms of pulling out the stops were all conflated, and that the discussions had progressed to the point of denying Geneva Conventions and CATCIDT protections to prisoners by the end of 2001 at high level, then, is an interesting case study in how the placement of a single person in two organizations leads to the immediate assumption of the truth of the worst case scenario under the One Percent Doctrine. This all would imply that the first exposition of the ticking bomb theory at a high level meeting of the U.S. government was between October 17 and December 2, 2001, and that theory became a reality soon after: Virtually all of the justifications for any lawbreaking by the Bush Administration, and even the justifications for the Iraq War, are based on al Qaeda seeking weapons of mass destruction.

The explanations that Abu Zubaydah's intransigence and an immediate and likely threat of another attack by Khalid Sheikh Mohammad are probably disingenuous. Decisions to vacate international law, to detain without a shred of civil rights, and even to use torture on prisoners had already been made months before Zubaydah, a schizophrenic who was given busy work duties by bin Laden (Suskind, pp. 96-96), was captured. And the decision to actually begin torturing, which we now know was made by the Torture Council with the express approval and knowledge of the President of the United States, was made because the fact that Zubaydah was crazy was at odds with a previous public statement by Bush that he was al Qaeda's number three, and would look bad politically. To wit, it occurred as a result of President Bush saying to DCI George Tenet, "I said he was important. You're not going to let me lose face on this, are you?" So they dutifully tortured a man who had referred to himself as three separate personalities in his diary, Hani1, Hani2, and Hani3. And they claim to this day, they got valuable information. From which Hani, I wonder?