Humanity Against Crimes

Banning torture in U.S. courts

2009-07-07T15:04:00.000-07:00

There was a court hearing to determine the sanity of Aafia Siddiqui yesterday. At least, that is what the various news sources seemed to be reporting on. Formally, it was a hearing for both the prosecution and defense psychiatrists to present their documents and reasoning on the fitness of Ms. Siddiqui to stand trial for attempting to kill U.S. government agents in Ghazni, Afghanistan. Informally, I think I was left wondering whether the U.S. justice system could deal with the case at all.

No, I'm not getting ready to pitch alternative justice. I'm not a big believer in the Military Commissions Act of 2006, I would like to see it repealed. President Obama's speech advocating a system of indefinite detention chilled me to the bone. And the trial balloon floated by Benjamin Wittes and Colleen Peppard made my blood boil. The U.S. judiciary has handled crises, criminal trials, trials with heavy political overtones, civil rights, human rights, corporate rights, and every other thing that has been thrown at it and remained resilient.

Torture eats at the court

But not this. I am increasingly of the opinion that there is no possible way for a U.S. court, based firmly on the rule of law, deriving its powers from common law, the Constitution, the U.S. code, and all the international laws, treaties, and customary law, a court in which due process is guaranteed to everyone without regard to background, and which strives to mete out justice and observe the innocence of the accused until proven guilty -- a court with such high ideals and aspirations -- no possible way to accuse someone of a crime and try them in this court, while there is an unspoken allegation that the government bringing the accusation has, in fact, tortured the defendant for years while holding them in conditions of enforced disappearance and incommunicado detention. Because the unspoken rule in a U.S. court of law is that the government bringing criminal charges against the accused has, itself, committed no crime against the accused, and certainly not one of the most heinous of crimes, one for which there is no affirmative defense at all. Whether or not the charges against the government are true, there does not seem to be any way to conduct a real trial when the government stands accused variously of incommunicado detention, torture with threats of death, possible killing of a child, nudity, rape, extreme isolation, and druggings.

First, there is the issue of her appearance in court. Ms. Siddiqui was brought into court by force yesterday. But this is the first time this was done. It wasn't important to have her at court for her arraignment, for her bail hearing, or for her hearing remanding her to Carswell for psychiatric observation. The first time it is totally necessary for her to come to court is when she faces a devil's choice: From her point of view, the prosecution seeks to imprison her for life, the defense seeks to drug her and imprison her for life. Whether or not she is sane, she ascribed her talkativeness to the fact that it might be her last opportunity to try to tell her side of her story -- as she put it, "I've seen people on the drugs, they can't talk."

How was she supposed to sound, and what should she have said or not said? If the charge of 'malingering', leveled at her by prosecution psychiatrists is true, it indicates she will say or do anything to avoid what? A conviction that would put her in jail for 30 years to life. The prosecution psychiatrists also say that recordings of her calls from Carswell to her brother Mohammed (did she know she was being surveilled, and does she have a right to?) indicated that she is fully cognizant of the charges and what is happening with the trial. A Ph.D. in neuroscience doesn't need to be told that a finding of 'psychologically unfit to stand trial' means either forced medication to produce fitness for trial, or indefinite incarceration. If she will take that risk to avoid trial, why would she not take any risk to say anything at all that she thought might help her case, once in front of the judge? Why then would her 'outbursts', no matter how 'rambling', be anything other than an attempt at the preferred outcome? How is it that a court can think of her as crazy when she interrupts them, and sane when she says things to psychiatrists?

In earlier court documents, one of the psychiatrists at Brooklyn MDC, had stated that she might be suffering from the effects of torture. There is a standard protocol for examining a victim of torture for psychological scars and effects. There is no record in any of the public information, certainly not in any news coverage, that the two words Istanbul Protocol were ever spoken in Judge Berman's court, that any of the five psychiatrists who testified at her competency hearing yesterday conducted tests according to that protocol, or that there is any intention of anyone connected with the court, not the prosecutors, not the FBI, not the judge, nor the defense counsel, nor any psychiatrists or anyone else, to follow through and determine, in a standard method used to begin investigation of the victim in case of an allegation of torture, whether or not Aafia Siddiqui has, in fact, been incarcerated or tortured.

Because determination of this fact is distinctly not part of the case, the case is allowed to stand in for others, and behaviors get interpreted as they are not. To begin with, although Aafia Siddiqui was for nearly 5 years the only woman on the al Qaeda top ten wanted list, she is not charged with any crime related to terrorism, the "war on terror", al Qaeda, or even the plot for which she was put on that list. She can't be. Any case that did consider the plot, supposedly a plot to cripple the nation's energy infrastructure by blowing up gas stations, would need to consider where that plot came from. But using that plot in court requires a discussion of how the information of the plot came to be known, and that implies dealing with information obtained from Khalid Sheikh Mohammad, which, since February, definitively involves torture and black sites. So the plot is only mentioned in reference -- only in the complaint and not in the actual charges does any reference to terrorist plots occur, and only in a document supplied to the judge by the prosecutor, asking the judge to consider the case as being linked to that of Uzair Paracha is her relationship to the actual plot participants mentioned.

Detailing how the information was obtained would pinpoint when it was that the manhunt for Aafia Siddiqui began, and that would lead to consideration of when she disappeared, March 29, 2003, a few weeks after Khalid Sheikh Mohammad was captured and rendered to a black site for torture. Since the prosecution psychiatrists testified that Ms. Siddiqui told them she was back and forth from Afghanistan to Pakistan during the intervening years, again we are stuck with a choice: We can believe the words of this woman as sane and fit for trial, and believe her statement of whereabouts to the psychiatrist and the FBI, and then we will have to believe that the FBI could not find one of the ten most wanted persons in the world, and the Pakistani ISI and military had no idea of her whereabouts, while she worked at a college in Karachi. Or her ex-husband, who contends the family secretly kept her around Karachi to maintain the fiction that she'd been disappeared. Does he also dispute FBI information that she had re-married? That information was also taken from Khalid Sheikh Mohammad, so maybe he does. Or we can believe what she has consistently, along with her family, told others for at least a year, which is that she was abducted on March 29, 2003 by agents and incarcerated, while she was on the way to the train station in Karachi. Take your choice. And remember, this is someone the FBI contends will say anything to anybody in order to secure her freedom.

Next, we can believe that she was picked up with handwritten notes on July 18, 2008, detailing biological and chemical WMD attacks in the New York area. The defense psychologist has argued that the notes prove she is delusional. They detail all sorts of theories on how to create germ weapons -- crazy theories -- going after only people who eat chicken, creating a germ that only attacks adults and not children. They are crazy because she has an undergraduate degree in biology, and a Ph.D. in neuroscience, and knew more than that about germs. When did she write these notes? Many believe that she was under U.S. control at the beginning of July, 2008. That was when Yvonne Riddley and Moazzam Begg began making noises about Prisoner 650, the Grey Lady of Bagram. Pressure grew when Imran Khan and Amina Masood Janjua joined the chorus, and then British Lord Nazim Ahmed, resulting in identifying Aafia Siddiqui with the Grey Lady, to the denials of the American military, which said there had never been a woman prisoner at Bagram. All of which happened before she was taken into custody on July 18, when a shooting occurred.

For this reason, bringing up the subject of whether or not she was incarcerated will bring up whether or not she was left in Ghazni by American or Afghan authorities to be found or killed. In which case did she write the notes in prison, or on the street corner where she was found? Because the Governor of Ghazni contends she was in pitiful condition when found, he photographed her in the famous shot that has had people contending she looks malnourished and abused. The FBI should remember to ask him if she had a pen, and how old the notes were.

Which brings us up to the circumstances of her arrest. It was convenient for Larry Neumeister to write his pieces in twos after her court hearing yesterday. The first, shorter pieces, went out on the wire, where news agencies the world over were waiting for news of the case, and quickly found their way into print in Pakistan and elsewhere. They mysteriously neglected to mention she'd been shot. That came in the follow ups, the more complete articles, after many papers went to print elsewhere in the world. But that's the case. And the FBI and CIA, and all U.S. officials contend they had no idea where she was until the day they came to interrogate her -- the day she was shot, July 18, 2008. But they also contend she was a "'treasure trove' of information on al Qaeda". She was shot and flown to Bagram hospital, where she underwent surgery, which had her still weak from bleeding and infection on her first court date in early August. During the time she was in the hospital, she was restrained, she was in a brightly lit room, and there was an FBI agent there the entire time. After that, she was on the plane, where the FBI again contends she was coherent and talkative, and then in Brooklyn MDC.

So let's talk again about torture. In the small. What was her treatment during those two weeks when she had the only opportunity, according to the FBI timeline, to be a "treasure trove" of information about al Qaeda? And was she then sane during that time? Then why the incoherent, crazy notes at the time of arrest? And what of the arrest? The Ghazni police had contended that she did not grab a gun and fire, that she only approached the Americans, to complain about her treatment in Afghan custody, and they panicked and shot. The Governor of Ghazni did not consider her to be dangerous, his assistant was shown in pictures he took (including the famous one) trying to get her to remove her burqa. He served tea to her and to her son on a couch at his residence. He took a picture of her, which her husband, in some of the same story the psychiatrist relied on to corroborate her whereabouts before 2008, contends was taken after a domestic dispute in Boston. It would seem that her husband's testimony is being relied on only because it makes investigation of the allegation of detention and torture unnecessary, and that Leslie Powers believes it because she can change her testimony to one of malingering from one of 'depressive psychosis'.

Is A Justice System that Systematically Avoids Torture Mentally Competent?

The effort that is being expended to prevent so much as one verdict of torture in the United States is incredible. In this particular case, it is distorting everything about the case. In the related case in Pakistan, the Pakistani government has been ordered to provide for Aafia Siddiqui's defense, negotiate her return to Pakistan with the U.S., and to determine the whereabouts of her children. Oh, yeah, the children. The eldest of those children has spoken in an interview and recalls being moved about, being incarcerated, and being shackled. Perhaps he and his mother, and his family, and Moazzam Begg, Binyam Mohamed, Nazir Ahmed, and others are just collectively hallucinating the incarceration. Perhaps they are all delusional. Except that the number one supposedly delusional person in all this is the very one that the U.S. government contends is sane. Because otherwise they might have to explain how she got that way. So she is 100% sane, but her 'outbursts' in court are delusional. And torture as a word, as a deed that should require investigation, has been banned from all American courts. And extreme isolation, which has a collection of symptoms three of which are exhibited by behavior corroborated both by the characterization of her court appearance and by psychiatrists for both prosecution and defense, is not a candidate for those symptoms no matter what the law of parsimony might say.

Or even if the outbursts from the FBI, the CIA, the President, the court psychiatrists, and everyone else sound delusional and 'rambling. Binyam Mohamed will eventually get his pictures, I have no doubt that the ACLU and Clive Stafford Smith will make sure of that. As for Aafia Siddiqui, the only child whose whereabouts is known is in Pakistan, while her defense and prosecution lawyers decide which kind of incarceration to put her in for the rest of her life. Of course she chose to speak out in court, no matter what she sounded like, no matter what people thought. Anything else would have been a Sophie's choice. And the government and her lawyers should recognize that, and do what they can to re-establish the rule of law in District Court. Until they bring torture into a court room in the United States, perhaps it is the government which is not competent for trial.

Update:

Benjamin Weiser of the New York Times has got a hold of a letter written by Aafia Siddiqui that the court released after the hearing. Since the letter is marked by the author as personal and confidential and not for the public, it is strange that it should be released by the court, even stranger that this is the sole piece of primary material made available to the public by the press and the court from this hearing. Mr. Weiser characterizes it as a rambling screed against the Zionists/Jews. To be frank, the letter is anti-Semitic, blaming the conflict between America and individuals and countries in the Muslim world entirely on Israel and the Jews, and asserting that "history repeats". But why is no mention made of the long paragraphs opposing war, or the part that reads (after blaming most everything on Israel and the Jews),

...of the kind that are kidnapping people from overseas with children and even babies!), torturing them directly and using their little children as a tool of torture -- or -- simply brainwashing simple-minded youth by pretending to be religious scholars and giving anti-American verdicts...all this in an attempt to make them say/do/write something that can be used to foment war between the US and their otherwise allies (such as the people of Pakistan and most other Muslim countries in the middle-east)...This is true! I am a first-hand witness/victim to this horrible game! It is the sheer favor of my and your GOD, and none other, that I am still "around" and able to write this.

Anti-Semitism is not evidence of attempted murder, nor justification for torture. So while it is certainly true that it is offensive, Mr. Weiser does a disservice to the truth to fail to point out that it is the anti-Semitic and conspiracy theory tone of the letter, and only that, which makes it seem at all insane. If that were the case, there are plenty of people on the internet who fit both those criteria. And paranoia and dread of conspiracies are, as well, on Dr. Grassian's list of symptoms of extreme isolation (along with hallucinations, poor impulse control, and oversensitivity to stimuli). And while Ms. Siddiqui's comments are being cherry picked for all that might offend, in the center of the letter is the allegation, still unanswered by either the government or by news organizations like the one Mr. Weiser works for, that Aafia Siddiqui was kidnapped and tortured by threatening or hurting her children.

The Torture Temptation

2009-06-09T15:24:00.000-07:00

What I find most remarkable about America's debate regarding torture -- beyond the fact that such a debate could even be necessary in America -- is the continual recourse of both proponents and opponents to the question of whether torture works. I can't think of any other illegal behavior -- not murder, not rape, not kidnapping, not assault -- that receives this kind of rhetorical makeover. When a murder has been committed, you don't hear people agonizing over whether killing can never, ever be justified. When someone has been raped, people don't ignore the crime in favor of a discussion of whether a rapist's satisfaction could possibly be proven to outweigh a victim's trauma and horror. If a child is kidnapped, the airwaves aren't polluted with discussion of whether kidnapping might actually be an effective way of acquiring ransom money. And so on.

Torture, apparently, is different. Let's talk about why.

Unlike other crimes, torture has a constituency, in the form of the architects who created America's torture regime. These are the people who feed the public discourse with a steady supply of, "Can you really say that torture never, ever works?" And, "What would you do if your child were kidnapped and the kidnapper refused to reveal the child's location?" And, "How can you compare enhanced interrogation techniquing one terrorist to the 3000 people killed on 9/11?" Etc. The architects, and their media allies, know that as long as the talking heads of television and gatherers by office water coolers, literal and electronic, are discussing the morality and practicality of torture, they won't be talking about the illegality of torture.

But this supply-side explanation is only part of what makes torture different. The supply would have nowhere to go in the absence of demand. And the demand is what we most need to guard against. Purveyors of torture excuses will come and go, but our psyches will never change.

I believe some deep place in the human psyche is attracted to torture. A fundamental aspect of human nature is an abhorrence of powerlessness and a concomitant will to power. And what greater confirmation of power, and banishment of powerlessness, is there than utter control over another human being -- body, mind, and soul?

We also abhor helplessness. It's horrifying to consider that over time we will never be able to entirely prevent terrorist attacks. We prefer to believe 9/11 happened because we failed to do something we could have done, that there's some extreme we can still resort to that will make us safe again, that if we do that thing from now on, we can gain greater mastery over the possibilities that frighten us. Because, for the reasons set forth in the paragraph above, torture is already seductive, we seize on it like a talisman custom-made for our fearful psyches.

So it bears reminding that the reason torture is universally illegal in the civilized world is a consensus that torture is not only evil, but also insidious, and that therefore we must guard against the temptation to torture by enacting and enforcing strict laws against it. These laws provide not just a bulwark against a recrudescence of torture, but act also as a signpost, wisely erected by generations before us, warning us to stand fast against the dark sirens of our worst impulses.

Leave aside the irony that it's self-styled "conservatives" who are so eager to ignore the accreted wisdom of generations past. That the consensus against torture is the work of generations -- the product of generations of mistakes and of continual, improbable appeals not just to morality, but to wisdom, too, to the better angels of our nature -- makes the more debilitating the right's progress in once again coloring torture as something respectable, even desirable.

It is nothing of the sort. Torture is an abomination. It is without exception illegal. Those who have authorized it and those who have carried it out have committed crimes. In the face of clear laws and clear evidence of violation of those laws, a rhetorical resort to theory or morality or practicality isn't just an attempt to obscure the commission of crimes. It's also an implicit debasement of the value of the law itself. Most of all, it's a profoundly unconservative attempt to reingest an evil seed civilization has over time and in the face of dark, conflicting impulses, managed largely to expel.

-- Barry Eisler

Cross-posted at Heart of the Matter. More here:

The Torture Mentality, Part 1

The Torture Mentality, Part 2

The Torture Mentality, Part 3

The Torture Mentality, Part 4

A Call For Action

2009-06-05T10:26:00.000-07:00

A brief progress report

June 26th is the International Day Against Torture. It is the anniversary of the entry into force of the U.N. Convention Against Torture and Cruel, Inhuman, and Degrading Treatment. This year, we have a new president in the United States, one who made a commitment to end torture on his second day in office. I have already written about how hard I thought that commitment would be to live up to. We are seeing the difficulties mount with every new facet, just bringing the truth out for the American people to judge on their own is nearly impossible, apparently, as is actually closing down the machinery that has been set up, not to mention bringing perpetrators to justice.

Over the months we have seen the Obama administration uphold state secrecy in court, move against habeas rights for those held in Afghanistan, as if where you are held determines how much of a human being you are, ask for a continuation of the infamous military commissions, and most recently, fight tooth and nail to keep photographic evidence secret that the ACLU says proves the high level involvement in the types of supposedly "unauthorized" tortures we saw at Abu Ghraib. The President delivered a speech calling for indefinite preventive detention of some people, for a period characterized by the chairwoman of the Senate Select Committee on Intelligence as "until the end of this conflict, which means terrorism, against the United States, against her allies, and in the world abates." The prisoners at Guantanamo are not deaf. I personally don't think it's an accident that shortly there after, Muhammed Ahmad Abdallah Salih decided that indefinite was too long.

Over the same months we have seen the media, and the proponents of torture, narrow the debate to only the consideration of waterboarding applied to three men, and whittled down to a discussion over whether the current Speaker of the House was informed and when she was informed. An ongoing push is still in progress -- not to deny, any longer, that torture occurred -- but to argue that it was effective, and worth it, and stopping its practice will endanger national security.

Time to stop and take a look around

But this is not what has happened, it is not the proper list of facts, it is not the proper perspective of what has happened to this country. The torture has been widespread. It makes no difference whether those photographs show rape of children, as some assert, or merely show pictures of a prison door, like the picture shown in Torturing Democracy, that proves, beyond a reasonable doubt, that the treatment the prisoner inside was receiving was a matter of following very strict, and very detailed orders. Yes, getting it all out will show that many horrible things have gone on. There has been detention of children, there has been abuse of children. There has been detention of women, there has been abuse of women. There has been mass torture, and mass inhumanity. There have been all these things.

But if, in the American mind, it is necessary to have graphic brutality, to have blood spurting across the screen, and heads crunched against walls, to have intense and explicit physical pain and the scars to prove it, then we will never end torture in this country, and never again serve as a beacon for human rights in the world. Rightly or wrongly, we did once. Moazzam Begg makes one so very heartrending comment in the film Torturing Democracy. He says, "If the Americans are doing this, then what hope is there?"

The image of Saber Lahmar, dying on his mat in Guantanamo in solitary confinement springs to mind. Nothing is being done to him in that image. Nothing but loud mechanical noises from some equipment near his cell. Nothing but lights all day and all night all week and all year. Nothing but no contact with the world, no chance to see daylight, no chance to converse with other prisoners.

There is no photograph to shock the conscience in that treatment. There is no blood, no scars, nothing but a man slowly losing the feeling and movement of his limbs, his eyes, the windows to the soul, slowly clouding over, and with them the fog descends on his mind and destroys that soul. And none of the debates in Washington, none of the restraints that will make the detentions "better", none of the improvements to the military commissions, no debate over whether or not information was obtained, no declarations that we must move forward with the Muslim world, no speeches, no hearings, no photographs, will deal with the fact that one of the most deleterious tortures practiced in this whole sordid episode -- has been absolutely nothing. Lots and lots of absolutely nothing. Absolutely nothing by the day, by the year, punishment for not providing the intelligence someone wanted to hear, or absolutely nothing for no reason at all.

When the United States comes to terms with how much torture has occurred, and why, it will have to come to terms with the tortures the American people would still not notice and not recognize. All the reversals of the present administration, all the debates, and all the forces that keep our country from looking at its own deeds, will have to be expanded. From three people who faced the waterboard, we must demand accounting for those who were stripped naked and shackled. From those stripped and shackled, we must demand accounting for those denied any sleep. From those denied sleep, we must demand accounting for those who faced the insanity of deprivation. And from those who faced deprivation, we musd demand accounting for those just disappeared and locked away, with no hope of being released, solely because someday whatever was in their minds might have once been thought useful.

A time for action

So torture hasn't stopped, and the fight to expose it hasn't stopped. And it goes without saying that those who ordered or committed it have not been brought to justice. And so another June is upon us. We must use this anniversary as a time to demand accounting and to bear witness.

I have updated the list of activities for this year, and will continue to update them. I appreciate any comments left here with more events, leave a link, I will check that the link works and add them to the list.

We would like if in addition to the usual orange ribbons, people would wear black, an armband or clothing, in a symbol launched in Pakistan for the rule of law. There's something about a black armband -- people ask you why you are wearing it. It's an opportunity to tell them why the rule of law is so important. It's an opportunity to ask for support for accountability on torture.

We would ask that people leave comments wherever you leave comments, asking for support for activities that will call attention to torture and demand action. Writing is good, dates and times are good.

We would ask that if there are local events in your area, that you support them and attend them. There are teach-ins this month, they are easy to set up, and many sites contain instructions. There are vigils and marches for those who like to speak with their feet. And if there aren't, well, there's always starting your own. Some movie houses may be amenable to a one time showing of their films if you are not charging money, and these provide a wonderful springboard for teach-ins. Call them. You may be surprised (If they are amenable to having their terms posted publicly, write me a comment and I will post them).

Over the month, I will try to be more attentive to posting again. And I shall have help. We will try to have some guest blogging on this site, and will begin within a few days with the comments of Barry Eisler. We will try to get more.

Please help. Torture isn't something that just goes away. And it's always been wrong.

Worst Constitutional Crisis Since...

2009-02-10T07:24:00.000-08:00

Yesterday, the new government, the one we had hoped would repudiate torture in all its forms, invoked the State Secrets provision in court in San Francisco, in a case in which the only threat to national security still left seems to be the threat of a court decision that the United States government tortured and rendered prisoners into torture.

Washington is having a rough time with torture. The international community is having a rough time with torture. In his book, Torture and Democracy, Darius Rejali recounts what happened in France in the late 1950's, when torture became an instrument of the state during the Battle of Algiers (pp.47-48):

What is important here is that democratic institutions were unwilling or unable to stop the turn to torture. One after the other, the judicial system, the legislature, the opposition parties, and the press failed. The police and military soon operated outside the law. In effect, they formed a closed state within the state. The military used its privileged position to establish covert torture, delay investigations, shape information, recruit political allies, and mobilize the public opinion for the war. The consequences for France were severe. In 1958, the army threatened to intervene in national politics for the first time since Napoleon's coup of eighteenth Brumaire, leading to the collapse of the Fourth Republic. In 1961, the army finally did organize a putsch and failed.

To be specific, above all, the judicial system faltered. Lacking information, prosecutors in Algiers depended on the press to identify the victims. The victims did not always have marks, so how could one bring charges against the police in these cases?...

At first, the government disputed press reports and suppressed publications about torture. La Question, the prison account of the well-known editor Henri Alleg, became the first book suppressed since the French Revolution....

Eventually, the government was compelled to investigate the allegations. It recruited investigators who were sympathetic to the police and military....

The old leftist parties and the press also failed. The internationally minded Communist party, for example, had its own torture skeletons in the closet, notably Stalin's victims....The press at first described "torture victims" in proper inverted commas. Even as the left-wing press became more vociferous, there were notable lapses....

Some military and police commanders broke ranks, resigned and denounced the torture, but there were just as many officers who wrote vociferously in favor of torture and threatened meddlesome amateurs. "You will be made to pay, all you academics. You will pay for lecturing us." Prowar journalists lionized the torturers in popular novels, asking the public: If you knew this terrorist had planted a bomb, would you not torture him too? The secret service recruited an author to write a book of counterpropaganda. The archbishop of Paris was reminded that certain funds might be cut if he was too publicly outspoken.

Okay, it differs in some details, doesn't it? But haven't we seen precisely these actions in our national anguish over torture and rendition? What does it mean, the new administration campaigns on the rule of law and both parties claim on the stump that torture is wrong, but then the same invocation of the State Secrets privilege, not 3 weeks into the new regime and the new Democratic majority?

Washington, in particular, and the nation at large, acts like a social brain, ruminating on what to do to avert the looming crisis. Like any functioning intelligence, it desperately sorts through its memories of the past, looking for an antecedent, some solid bedrock of experience on which to base its actions, in hopes of reducing the fear of the unknown and improving its chances of a good outcome. Most clearly, we see this right now on the financial crisis. Though the behavior is to lurch from solution to solution, or to get distracted in minutiae of exactly how and when to implement some fix, there is always a solid knowledge of things past, a daily reading of what happened before, even as the chorus of opinions on what should be done now cause settled history to change and mutate and take on different tones depending on the mood of the moment. But always, there is the antecedent. This is the worst financial crisis since 2001. This is the worst financial crisis since Japan in the 1990's. Since Argentina. Since the Great Depression. But the invocation of a crisis we have never seen before by President Obama, leads to a tone of genuine fear as reporters query the new president with real trepidation about the unknown:

[Jennifer Loven of AP]: Thank you, Mr. President. Earlier today in Indiana you said something striking. You said that this nation could end up in a crisis, without action, that we would be unable to reverse. Can you talk about what you know or what you're hearing that would lead you to say that our recession might be permanent when others in our history have not? And do you think that you risk losing some credibility or even talking down the economy by using dire language like that?

I will try to say this in the starkest of terms:

Torture is the worst Constitutional crisis we have faced since slavery.

The worst since slavery. Since the crisis which, once it could no longer be avoided, plunged the nation into the deepest of crises, literally ripping the new nation apart, and causing a war that still tops the list of all American wars, in numbers of American dead. And that, the fact that there is no nicer antecedent, is why the nation will do anything to avoid facing the crisis, even as it is dragged inexorably towards creating its own judgment day. There are three horsemen of the very real jus cogens apocalypse, and they are slavery, genocide, and torture. And when a country does not avoid them, and cannot live with itself if it bargains with them, then it faces judgment.

It's our fault, us the civil libertarians, the humanitarians, the human rights advocates and activists, just as it was the abolitionists fault the last time. Or was it the next to last time. We had a crisis with genocide. We sanctioned it, postponing civil and human rights, suppressing a frank appraisal and a forswearing. Our government sanctioned massacres and deportations, breached treaties and looked the other way from suffering. The industrial revolution was happening at the same time, and the mood of the nation not to look too hard at itself in the mirror, tolerated that injustice, and many more, power grabs by corporations, loss of voting rights and registrations, laws that would have to be repealed and actions that would beget apology and remorse, generations later. Gangs surrounding the Civil War generals, never asked to stand down, marauded the Great Plains in private criminal wars against the Cheyenne Nation. Arguably, we did not emerge stronger from a battle not fought. Arguably we stalled the gains of facing down slavery by a hundred years. Arguably, the strength of We the People in this democracy was permanently reduced. Arguably, you cannot make peace with the unthinkable and not lose something of yourself.

But this time, we move towards the crisis. We may try compromise. Our denial is no longer viable, our anger is evident, we begin to bargain to forestall the inevitable. As the facts seep out, so do proposals for Truth and Reconciliation commissions, proposals to investigate but not prosecute, proposals to acknowledge the great guilt of those at the top and be lenient on those who carry out orders. Yes, the State Secrets got invoked yesterday. But things are changing: It provokes editorial vehemence now, before the fact. Where most major news outlets did not cover the news of torture meetings in the Situation Room in the White House when it first broke, news outlets could not help but cover yesterday's court surprise. Where angry letters to senators and congressmen once provoked a tired, patterned response, now senators rush to sign on to some kind of investigation. Where one or two "fringe" representatives once called for a full accounting and prosecution, now eyes are watching as the House Judiciary Committee moves forward.

The bargaining and depression in Washington are part of the process. There will be an investigation of torture by the United States during the years following September 11, 2001. There will be an understanding that we may have lost our best chance for bringing all the perpetrators of that act to justice because we tortured and rendered. There will be prosecutions. They are unavoidable. The world will not sanction what we have done, even if we would like to. And just as our economic woes are calling into question a generation's assumptions about a healthy economy, our crisis over torture will call into question several generations acceptance of the "closed state within a state" where, in our case, the military and the intelligence agencies "operated outside the law". Most of us have never lived in a democracy not protected by a state secrets. And now the state secrets have threatened our democracy.

The sooner we accept that the battle between the privilege of keeping state secrets and the inevitability of judgment for breaking a law that upholds our humanity is a battle that must be fought, that cannot be avoided, and that will bring pain and pit friend against friend and sibling against sibling, the sooner we can begin to talk realistically about how to avoid the worst of all possible consequences. Because we know we should not solve this with violence. Powerful forces are allied with those who tortured, and powerful emotions, exhibited only in the tiniest fraction during the election cycle, could really and truly tear the country apart. Torture stands as the personification of all the secret government that some believe is necessary for our very existence. They will not relinquish it willingly. But we know that torture cannot continue to tear at our fabric any more than slavery could. The worst moral and Constitutional crisis. Not since Clinton, not since Nixon. Since Abraham Lincoln. I hear Barack Obama is a fan. People need to make sure he understands: The economy is not the only unique crisis we face.

The Response from the International Criminal Court

2008-11-02T11:32:00.000-08:00

Note: Since the letter to the court was from the signees from this site, comprising 129 electronic signatures, I am posting the response here (and will cite it elsewhere) in the belief that it is essentially addressed to us all.

Please notice that the issue is jurisdiction, and that the countries in which the alleged crimes took place can place the matter within the Court's purview by acknowledging its jurisdiction. That would place the onus of bringing this matter to bear at least somewhat on the citizens of those countries, as it has always been on Americans, like myself, who must continue to pressure our own government about our own government's torture abuses. You who frequent this site from other countries, take heed.

Here then is the response from M.P. Dillon, Head of the Information & Evidence Unit, Office of the Prosecutor, of the International Criminal Court, in its entirety:

The Hague, Monday, 27 October 2008

Dear Sir, Madam,

On behalf of the Prosecutor, I thank you for your communication received on 8/6/2008 as well as any subsequent information.

As you may know, the International Criminal Court ("the ICC" or "the Court") is governed by the Rome Statute, which entrusts the Court with a very specific and carefully defined jurisdiction and mandate. A fundamental feature of the Rome Statute (Articles 12 and 13) is that the Court may only exercise jurisdiction over international crimes if (i) its jurisdiction has been accepted by the State on the territory of which the crime was committed, (ii) its jurisdiction has been accepted by the State of which the person accused is a national, or (iii) the situation is referred to the Prosecutor by the Security Council acting under Chapter VII of the UN Charter.

Based on the information currently available, it appears that none of these preconditions are satisfied with respect to the conduct described. Accordingly, as the allegations appear to fall outside the jurisdiction of the Court, the Prosecutor has confirmed that there is not a basis at this time to proceed with further analysis. The information you have submitted will be maintained in our archives, and the decision not to proceed may be reconsidered if new facts or evidence provide a reasonable basis to believe that the allegations fall within the jurisdiction of the Court. The decision may also be reviewed if there is an acceptance of jurisdiction by the relevant States or a referral from the Security Council.

I hope you will appreciate that with the defined jurisdiction of the Court, many serious allegations will be beyond the reach of this institution to address. I note in this regard that the ICC is designed to complement, not replace national jurisdictions. Thus, if you wish to pursue this matter further, you may consider raising it with appropriate national or international authorities.

I am grateful for your interest in the ICC. If you would like to learn more about the work of the ICC, I invite you to visit our website at www.icc-cpi.int.

Yours sincerely,

M.P. Dillon

Does the United States Torture Women?

2008-10-12T20:26:00.000-07:00

In the world as it should be, things are not going well for the U.S., or perhaps the Bush administration, when it comes to keeping the torture thing down. At the end of September, HBO aired Taxi to the Dark Side, finally. I'm not one to follow the Oscars too closely, but I cannot recall a time when there has been a movie that won an Oscar, in this case for best documentary film, and the movie was shown nowhere in the weeks following the Academy Awards. If that has ever happened before, I've never heard of it. Equally mysteriously, the film was not available on DVD at all, either. Neither was the Errol Morris film Standard Operating Procedure until this month. And Scott Horton documents the difficulties with a new documentary prepared for WNET, Torturing Democracy, that should be aired by PBS but whose producer was told "no time slot could be found for the documentary before January 21, 2009." (h/t Anonymust). His piece also sheds light on the long lag for Taxi to the Dark Side. A long time ago, I had written as to whether these documentaries and dramatizations were doing badly at the box office. Scott Horton's piece raises some questions about whether there were more nefarious reasons why.

In a world where the testimony of government law enforcement officers and U.S. soldiers is unimpeachable, the indictment against Aafia Siddiqui should be ironclad. After all, there is an affidavit signed by an FBI agent to back it up, to say that what happened in a room at the Ghazni police station in Afghanistan was that the woman stealthily got a hold of a soldier's gun and came out shooting, was scuffled with and then shot twice in the torso in "approximately 2 shots".

There is no such world, not after Pat Tillman, not after Jessica Lynch, not after repeated attempts to pretend that there was no intention to torture on the part of high government officials, just memos and documents, and written testimony from a sitting Secretary of State and her lawyer, and now a new S.O.P. published on the website accompanying the show that can find no timeslot, all detailing, I suppose, the sincere desire of the American government and military to have the whole truth reach the surface.

So what might have been a 'he said she said', to use the frequent term in the press, between the Afghan National Police and the FBI over what happened at that police station in Ghazni, what might have been a 50-50, 'who you gonna believe', now tips towards the Afghans, who contend that there was a custody and jurisdiction dispute, the Americans were disarming them, and Ms. Siddiqui approached the Americans, who panicked and shot an unarmed woman in police custody twice. That and the question of how the frontal torso of a person struggling over a rifle is a clean target that a revolver can hit twice in two shots.

Mark Benjamin of Salon is writing today of yet another case in which the American military is apparently unable or unwilling to tell the truth, even in the face of evidence on an incident of American soldiers shooting at the wrong time. It's a heartbreaking story, but I combed it for a deep reason that the military would go to such lengths not to tell the truth, and could find none. In the case of Ms. Siddiqui, there is very little, I suspect, that the United States government would not do to keep the truth from coming out, and I believe that the outlines of why are beginning to emerge. I've tried many times to write this post, I have erased it just as many times. If you are reading this, it means I finally didn't delete it anymore.

The existence of female enemy combatants

Yes, it is another post generated from my attempts to collect facts about Aafia Siddiqui, Prisoner 650, and related matters. And what I would like to say is not one hundred percent unimpeachable, since some of it follows from inference, and the chain of inference does not always have to be correct. Nevertheless, I believe it to be as accurate as I can get, given the difficulty getting information.

The main pivot point is this: Between the speculation, started by Moazzam Begg and Yvonne Ridley, principally, about Prisoner 650, a.k.a. The Grey Lady of Bagram, and the response to a letter requesting information by Lord Nazir Ahmed of Britain, a letter that he says he thinks precipitated the arrest and shooting of Aafia Siddiqui, and about which he spoke in a press conference on September 9th, the government of the United States has admitted twice that there have been undisclosed 'female enemy combatant' prisoners at least at Bagram. The second admission (other than the letter written by the U.S. embassy to Lord Nazir Ahmed) was actually the first, a response by Central Command spokeswoman Lt. Col. Rumi Nielson-Green on August 13th.

Both admissions were virtually identical: That Aafia Siddiqui is not "Prisoner 650". Specifically, she is not the prisoner who was at Bagram 2003-2005, whom the statements both say was repatriated to her country, and who they say did not match Siddiqui's name or physical description. Taking the U.S. military at its word, then if Aafia Siddiqui was a prisoner, that makes two female enemy combatants, and begins to look like the tip of a larger iceberg. There may, in fact, be more. There is a claim from CagePrisoners that the ICRC was aware of and visited a female prisoner at Bagram who was registered with them in 2004/5. This may or may not be the same prisoner that the military has admitted to. The dates do not match, and the U.S. military should be asked to explain that, if so. And if the ICRC registered and visited the prisoner, then it was probably not Aafia Siddiqui. When the Red Cross visits, prisoners are allowed to fill out messages, which are subject to censoring but not holding by the country that is detaining the prisoner, in this case the U.S., and are then forwarded through the network of ICRC and IFRC offices and branches, and delivered to usually next of kin. The Siddiqui family has asserted that they heard nothing from Aafia Siddiqui from March of 2003, and that means that she was not a prisoner reported to the ICRC. If Prisoner 650 of Moazzam Begg's description, and the military's detainee, and the prisoner the ICRC is alleged to have visited are the same (Begg was told the ICRC had visited a prisoner between 2003-2005), then someone needs to account for the mental state which Moazzam Begg alleges the prisoner to have been in, and the allegations of himself and others that she had been abused.

Was A Woman Interrogated at a CIA Black Site?

Ms. Siddiqui was assumed by multiple news outlets, as late as 2006, to have been in the custody of the CIA at a "Black Site". WTVJ Miami reported "intelligence officials" as "interrogating" her in 2003, while the FBI disclaimed that they had her. In 2006, when President Bush claimed that he had closed the black sites, many news organizations and human rights groups looked askance, the number of "high-value detainees" he was transferring to Guantanamo from the black sites was 14, and the human rights organizations had counted either 36 or 37 prisoners they believed to be at that point held in those sites. The Christian Science Monitor, in 2006, citing Reprieve, included Aafia Siddiqui as one of those possibly still at a black site after the supposed closing, and Common Dreams echoed this question a few days later.

There are two other facts that make the CIA more likely to have been the organization holding Siddiqui than the military, and further distancing her case from the Prisoner 650 case. The first is that her statement to the Senate delegation from Pakistan that when abducted, she was given an injection and woke up in a cell seems to point there. The CIA is known to have used drugs during extraordinary rendition flights. The only other allegations of drugging as a preliminary to being rendered to another country are from the U.S. DIHS in deportation of immigrants, which is not a possibility going from Pakistan to Afghanistan (if that is where she was held, her description mentions only interrogators whose English was fluent and might have been Afghan).

The other fact is the cohort who was picked up at around the time she disappeared. These included basically all those who were apparently named by Khalid Sheikh Mohammed during the time immediately after his arrest, when he was being tortured at a black site himself (he is widely known to have been waterboarded, and was reportedly subjected to sensory deprivation over an extended period of time, among other techniques). Ms. Siddiqui was among them, in fact, the whole group alleged to have been plotting with Majid Khan, currently on trial at Guantanamo and himself a high-value detainee from a black site, one of the 14, were taken to black sites, and all or most of them have alleged torture. One person, Uzair Paracha, has been found guilty in U.S. court of material aid to al Qaeda for helping Majid Khan pretend he was in the United States. The original contention of the FBI, before she was alleged to have been anything else, was that Ms. Siddiqui opened a post office box in Baltimore as part of the same attempt to pretend Majid Khan was in the U.S. And her gradual transmigration into an al Qaeda mastermind, who did everything from transact blood diamonds to develop anthrax weapons, is also consistent with considering her as high-valued, and with the persons sent to black sites.

Which makes Siddiqui's detention, if it proves to be real, at least the second instance of a female enemy combatant detained, and the first of one who was not reported to the ICRC, or anyone else, and who may have been interrogated at a black site by the CIA under the "golden shield" rules of the Bybee memo, not the Rumsfeld approved interrogation techniques.

So how real is it? I do not believe there is any more doubt that she was detained, that she was subject to at least some of the techniques at the black prisons, which may be what she means when she asserts that she was "brainwashed". Whether or not she was subject to further abuse is a matter for investigation, but given the rules in effect at the time, and the belief that these high-value detainees had to be tortured for the good of the country, I believe it more than a little plausible and will have more to say about it below.

For the time being, as proof of her incarceration, I would be willing to take her mental state, as well as her own assertion and that of several human rights groups, and the assertion in an affidavit by her lawyer in court. Her mental state, given the competing histories, must arise from either of two mechanisms (or perhaps both, but that isn't relevant here): Either her problems arise from brain damage consistent with her severe injuries when she was shot at Ghazni, or they arise from prolonged detention, deprivation and inhumane interrogation techniques. As for the former, it is possible that she suffered brain damage after being shot. There are three immediate reasons why this is possible: loss of blood causing hypovolemic shock or her breathing stopping, tension or hemo- pneumothorax caused by a bullet entering her chest cavity, or cardiac tamponade due to the same mechanism. All three would be forms of anoxia (lack of oxygen to the brain). Anoxia causes a range of symptoms, including memory loss, movement and sensory deficits, seizures, coma, speech or comprehension deficits, depending on which parts of the brain it affects.

The second mechanism, that of prolonged sensory deprivation/bombardment, prolonged severe solitary confinement, prolonged interrogation sessions, and some of the other techniques known to have been practiced at black sites, cause a very different set of symptoms, which Stuart Grassian had put together as a cluster of symptoms in his work on solitary confinement. They include paranoia, heightened reaction to stimuli, perceptual distortions, visual and auditory hallucinations, memory loss, impulse control problems, intrusion of obsessive thoughts and ruminations. Others include depression and many forms of PTSD.

Aafia Siddiqui's evaluation by first a prison psychologist, then a more comprehensive statement by a prison psychiatrist at Brooklyn Metropolitan Detention Center showed paranoia, Axis I depressive psychosis, possible PTSD, visual and auditory hallucinations -- she related that she had seen her daughter in her cell and had problems distinguishing that from reality. The psychiatrist spoke to her while she covered herself in a blanket in the corner, her lawyer reported that she sat in her cell and cried and screamed. Among these symptoms, the visual and auditory hallucinations stand out, since Grassian contends that the combination is rare, excluding schizophrenia that usually manifests itself at adolescence, and old age dementia.

By way of graphic comparison, the following is from Philippe Sands, The Torture Team, a description of prisoner 063, Mohammed al Qahtani, after several months of bombardment by sound and light, sleep deprivation, and total solitary confinement(The Torture Team, p.162):

...in November 2002, FBI Agents observed Detainee [redacted] after he had been subject to intense isolation for over three months. During that time period, [redacted] was totally isolated (with the exception of occasional interrogations) in a cell that was always flooded with light. By late November the detainee was evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reporting hearing voices, crouching in a corner of the cell covered with a sheet for hours on end).

Consequently, even if other circumstantial evidence weren't already pointing in the direction of her incarceration and prolonged abuse at a CIA black site, her symptoms point towards that, since otherwise the U.S. government is faced with the task of explaining how someone could be an al Qaeda WMD mastermind one minute, and reduced to Axis I depressive psychosis the next, with no intervening cause. Jonathan Hafetz speculated in the Jerusalem Post,

"It could be precedent-setting in terms of transitioning people from extralegal detention into the criminal justice system," said Jonathan Hafetz, director of litigation for the Liberty and National Security Project at New York University's Brennan Center for Justice. "You could have a judicial inquiry into how someone was treated at a black site - it would be incredibly valuable."

Currently, I suspect, the only way her case will blow the lid off anything is if she is allowed to file under the Torture Victims Protection Act, and a full scale investigation ensues. Otherwise, she'll follow Uzair Paracha to prison if she ever goes to trial.

Why is this important?

Aside from any importance attached directly to Ms. Siddiqui's case, and there is much - it is an international human rights incident between Pakistan and the United States, and emblematic in that country of the plight of their "disappeared", the implications of multiple female enemy combatants in U.S. custody, and of one in "high-value" black site incommunicado detention are profound, which may indicate why the U.S. government has gone to such lengths to protect this information above all else: above admissions of waterboarding, above admissions of extraordinary rendition flights through Europe, above admissions of homicide and abuse at Guantanamo, in Afghanistan, and in Iraq.

It means, without any speculation about Ms. Siddiqui's detention whatsoever, that there was a female in custody at Bagram during the period following the time when prisoners were killed there in interrogation, and during the period when all of the "torture memos" those by John Yoo, Jay S. Bybee, and William Haynes/Donald Rumsfeld, were in effect. For a period that spans the entire Abu Ghraib set of photographs, the ensuing scandal, and the reports of that scandal and the homicidal interrogations at Bagram which are the center of "Taxi to the Dark Side", spans the timespan when the Black Sites were reported, spans the time written about in Erik Saar and Viveka Novak's book, Inside the Wire, which details, among other things, sexual humiliation of prisoners at Guantanamo by interrogators of the opposite sex.

In Saar's book (Inside the Wire, pp. 224ff.) he details for several pages an attempt to break a male inmate at Guantanamo, by a female interrogator who first taunted her prisoner with sexual remarks, then rubbed her breasts against him and touched him, then finally unbuttoned and put her hand into her pants, withdrew it, and pretended to smear his face with menstrual blood. Saar comments that afterward the interrogator, "looked at me and began to cry...I knew she hadn't enjoyed this. She had done what she thought was best to get the information her bosses were asking for." (p.228). This is the language of a person who is performing sexual humiliation under orders. A high-value detainee was subject to many things that ordinary prisoners were subject to, and the CIA played by harder rules than the military, and is still permitted to, as far as we know. It is not hard to speculate what those rules permitted against someone known to have a Muslim woman's fear of nudity, cavity searches, or other humiliations, at a sight with no Red Cross oversight, highly classified, and the sense of mission that would put people on a waterboard.

We know as well that prisoners were stripped and placed in stress positions at Guantanamo, at Bagram, and at Abu Ghraib. Stripping was S.O.P. at Guantanamo. We know from the above example that exploiting "Muslim sexual fears" was fair game. We know prisoners were raped anally with rifle barrels. We know some high-value detainees were not only tortured with the approval or memos from the OLC or the defense department, but with the blow by blow approval, if not in real time, by members of the National Security Council, with the approval of the President. We know that high value detainee torture was considered necessary.

It has seemed alright for us to know this, many of these facts have come out of government officials themselves, testifying before Congress, writing written testimony, and in many of the books that have come out about the White House and the players in this high stakes torture game. What has been more confidential than anything, what has been more classified than any other fact, what has been hidden so hard that the stories that have to be concocted to keep it secret begin to make no sense is this: That this was done to women as well. Aafia Siddiqui had 3 children with her when she disappeared, only one has been accounted for. She says she was threatened and made to sign documents by telling her harm would come to her children. One is a girl. One was an infant boy. Is there another shoe to drop?

The Active Denial of the Torture Industrial Complex

2008-09-30T21:17:00.000-07:00

The other day on Glenn Greenwald's blog, bystander cited Digby who remarked about a nasty crowd control device that has been documented by the BBC recently. That led to track down more about the two systems referred to in the article, the Active Denial System, and the Silent Guardian. It turns out that the relationship between these two is that Active Denial System is the U.S. military's requested, and largely implemented weapon for something in between crowd control and counterinsurgency, and that Silent Guardian is Raytheon's implementation of the main weapon, a collimated 1 millimeter (95GHz) beam 45 inches square, and has a range of 250 meters.

A Device for Crowd Control?

I posted a longish set of quotes about this device and plan, and Reilly referred me to the complete shebang, a mobile device that has gone under the rubric of Project Sheriff. This mobile unit includes both weaponry for shooting and killing enemies after they are flushed out of crowds, but for the crowd flushing operation itself, the vehicle has brilliant laser driven lights to disorient, painfully loud noises, and, of course the Silent Guardian. The rationale is that you point these devices, whose specific purpose is to create disorientation and pain, and an overwhelming reflex to run away, and anyone who doesn't run away must be enemy and can be shot.

Comparisons on military discussion sites and sites for weapons afficianados are to the Taser, a device that shoots two straightened fishhooks on wires at the target, and then delivers specially "shaped" electrical charges of between 0.75 and 1.5 joules, causing the target to collapse in involuntary reflex. That device is common already among police departments, where it was originally introduced as a substitute for firing a gun at someone, but has been much more widely used than guns ever would be, in no small part because each use, unlike a police revolver, does not have to be accounted for in detail.

Raytheon describes this new device, the Silent Guardian, as a pain gun, they dislike the use of the term ray gun. Their interviews with the BBC, with Michael Hanlon (who has tried the demonstration, and posted the pictures), allude to a highly sophisticated manipulation of nocioceptive pain, to create a weapon that causes pain, but no lasting physical or psychological damage. Many of the commentators cited above have made the connection with torture, one would be remiss to fail to do so. But before delving into that, some care should be used examining that claim, which would, if true, amount to an achievement of something of a 'Holy Grail' of what Darius Rejali calls 'clean torture' (Rejali, Torture and Democracy), and what Physicians for Human Rights refer to as "Leave No Marks". Not that that is anything to celebrate, anyone who shares goals with the worst of the French Gestapo has nothing to be proud of.

But, to Raytheon's claim: The device is not a transmitter of signals directly to sensory or nocireceptor nerve endings at all. Most devices that do such things in the most direct way would be electrical, would require contact, and would have to be exquisitely precise to only affect the nerve endings in the dermis, as most electrical devices affect nerves considerably deeper and in a larger area (for instance, the Taser). The device causes burning pain over most of the body facing the beam, even through light clothing, this is supposed to cause a reflexive desire to flee, as when your hand accidentally encounters boiling water. It does this, however, by actually heating the first 1/64th of an inch of skin to 50° C, in three seconds, the one-millimeter wave does not penetrate any deeper into the skin, and herein is the claim of no physical damage.

Newton's law of cooling provides a simple approximation for what happens if the time increases beyond three seconds, or even for what really transpires within that time. If the surface of the skin is at 50° C, and the deep layers of flesh, or perhaps the bone and organs, are at 37° C (normal body temperature), there is a linear gradient between the two temperatures, and heat flows from the higher temperature to the lower one. So as time goes by, giving Raytheon the benefit of the doubt and assuming that the statistics after 3 seconds are maintained (they aren't), the heat flows into the body at a rate somewhat higher than that of the sun on a day at the beach. In time, that body will lose it's ability to maintain its temperature with so much heat being added, failing progressively through heat exhaustion to heat stroke, at which point the maintenance fails and the core temperature rises. Since 50° C is higher than 41° C, the temperature at which body chemicals begin to break down or denature, the body literally starts to come apart chemically and a person will die if not treated. However, long before this happens, the level of heat will continue to rise and the result will be burns. Even Raytheon admits that these have been observed after 250 seconds.

And, as usual when people are trying to create clean pain, tests are run on volunteers, who are carefully screened and protected from adverse consequences. Were someone to pass out or become unable to walk in front of the device (perhaps trampled by the crowd as they reflexively ran), they would be an injured party sustaining an injury they could not avoid, and if conscious, they would be experiencing an intolerable pain that they could not stop, from a hostile source, that provoked flight reactions to avoid death that could not be acted upon. In other words, there isn't much difference between the device used on anyone who cannot run, and, say, waterboarding. The potential for abuse is quite clear, as is the attempt to preempt concern for it. By specifically referencing no lasting physical or psychological damage, promoters are referencing only one set of documents: The Convention Against Torture, or its implementing laws.

A Torture Industrial Complex?

What is truly disturbing about this is the collection of tools on the Project Sheriff Active Denial System machine, and the insistence that this is a pain gun. Further is the military's lengthy planning for the device, and the apparent belief that the device will civilize war the way the Taser is supposedly civilizing police use of force. The military is already set to deploy more than a dozen of these. But if you throw in the Taser, the list of "less than lethal" weaponry has an eerie ring: Bombardment with intense light, bombardment with intense sounds, application of burning heat, and application of electric shocks, all heralded as a good thing, and all in production and deployment. To be sure, there are a couple of other methods of delivering "clean torture", stress positions and prolonged solitary confinement, but otherwise, the list is fairly complete, compared against the cleaner techniques of the Gestapo, or of the Soviet NKVD, as precursor to the Chinese techniques that gave rise to all the consternation about brainwashing, the experiments on sensory deprivation, and the development of the now notorious SERE program, the KUBARK manual, and all the other toxic brew that went into the U.S. torture program of the past few years.

Tasers are big business, and were carefully constructed to avoid laws requiring accounting of each application of force for deadly weapons like guns, among the police. The company that makes them, and their advocates, of which there are many, insist that they are used for a gun substitute and not control or punishment, and try to counter each instance of a death from Taser use with alternative explanations.

Now there are companies or corporate divisions which specialize in the application of intense light, or intense sound. There is this new collimated beam weapon, which appears to perfect the "electric bench" of the Vichy Gestapo (Rejali, Torture and Democracy, p. 113). These are, for the time being, military contractors, members of the Military Industrial Complex, if you will. Sensory and sleep deprivation is practiced at Guantanamo, documented by Human Rights Watch, in 2008. Solitary confinement is practiced at U.S. supermax prisons by what is now even commonly known as the Prison Industrial Complex (also documented in the HRW document).

We are now creating, or amalgamating from other "Industrial Complexes" an industry that supplies the government of the United States with clean pain. Clean pain for crowd control, clean pain for counterinsurgency, clean pain for punishment, for interrogation, for confession. All of it ludicrously justified as legal and even humane because it supposedly does no lasting damage (the current very narrow definition, which somehow fails to take into account the severity of the pain). But none of it is tested on real subjects -- that is to say people who are hostile, who are captive, who do not volunteer for a test that will soon end. Those tests will come in the form of lawsuits under the Torture Victims Protection Act, or perhaps in the Hague. Because clean pain isn't really clean. And the psychological damage, and probably the physical damage once the device becomes routinely used (as in the Taser), are real. And no amount of lobbying from any Torture Industrial Complex will change that.

Torture and the U.S. Election

2008-09-14T14:46:00.000-07:00

The issue of torture is important in the political race this Fall in the United States. No, it isn't an issue at the tip of many tongues, the candidates are not debating it, and the media, for their part, believe that both candidates views on the subject are known, and that they at least agree that torture should not be practiced, and that the prison at Guantanamo Bay should be shut down. Occasionally, it gets tossed in, in a list of epithets, when someone wants to express distaste over the fact that issues of importance are not being discussed. Less frequently than the two wars the U.S. is fighting, maybe even less frequently than those some advocate starting. It is less important in political advertisement than the economy, even less important than the price of gasoline. If it got mentioned at either political convention (and it did), it was certainly in passing.

The issue of torture is important in the political race this Fall in the United States. Even the local, the time frame, and the methodology have been circumscribed. There are many human rights organizations concerned with the military commissions at Guantanamo Bay, less if the subject is the prisons elsewhere, or renditions to foreign countries, still less, or not at all, about the reaction to our practices in other parts of the globe. Somehow, once the prison is closed down at Guantanamo Bay, our dark period, when U.S. officials wrote memos reinterpreting the law and international treaties, when cabinet members worked out which technique would be done next, when a national debate raged for months over whether or not strapping a man to a board, covering his head with a towel, lowering his head below his feet, and pouring water into his nose and mouth until he started to drown, was torture, will be over. Somehow once those 270 inmates are repatriated, or moved to U.S. supermax prisons, or whatever is supposed to happen to them, a foul chapter in American history will be over, and everyone can concentrate on their own happiness, on the gas prices and the values of their homes, on good jobs and quality health care once again, like, well like they have been doing all along.

To be sure, it is important to put torture into the litany, to add it to the list of things to be fixed when the big change comes. To be sure, it is also important that whoever is elected in the United States be against torture. To be sure, it is also important that the military commissions be criticized for the mock justice that they are, that the details of what has been done to Mohammed Jawad must be enunciated by Major David Frakt eloquently, for the world to know what has happened to these boys. To be sure, we must close down the prison that has become the symbol of American human rights abuse at Guantanamo Bay.

And so torture is an important issue in the political race this Fall in the United States. Too important to talk about. In a parody of what elections in democratic societies are all about, the issues that are the most important ones facing the United States in the Fall of 2008 are those which are receiving the least attention. There is perhaps no greater indication of the feel good nature of American discourse, than that precisely those subjects which cause the most pain to listen to, precisely those for which Americans are faced with stark choices and grave implications, precisely those issues for which our forbears fought and died, for which many in this world would still fight and die, which do the most to define us, our character, our mettle, our sense of responsibility to our country and to our world, are those which may not be mentioned, unless in passing, unless as one in a list of epithets, unless there is another subject to which the speaker or the media can quickly segue, fearful that the magic which sells will fail to sell if the buyer hears something discordant, a break in the façade, a breach in the fabric of the wonderful life.

What matters elsewhere

But torture and human rights are an important election issue outside the U.S. How the U.S. chooses to repudiate these recent practices is important to other countries. How the U.S. chooses to uphold its treaties, whether the perpetrators of grave injury to the minds and bodies of citizens of other countries will be prosecuted matters elsewhere. A delegation from the Pakistani Senate will arrive in the U.S. this month, they had asked to meet with the Pakistanis interned in Guantanamo Bay. They have been refused. They will meet with Aafia Siddiqui, maybe. They have been told U.S. officials have no objection to the meeting, but she has not met with many people, because a strip search is a pre-requisite for such meetings. And the fact that Bush administration officials do not object to the meeting is secondary to the permission of the MDC prison in Brooklyn where she is held. Khalid Hasan, in the Pakistani Daily Times, vents frustration over both proposed meetings, calling the meeting with Siddiqui a "consolation prize", and wondering what it will accomplish. Exactly why members of a foreign government which is said to be an ally of the U.S. cannot meet with their nationals at Guantanamo is a mystery -- or not.

In truth, Pakistan has been through more than a few upheavals since February 2007 over the fate of its nationals who have disappeared. Ms. Siddiqui is only a poster child for these, a well known figure and someone who would have seemed above the fray to Pakistanis, because of her gender and education. She symbolizes the plight of the 580 or possibly thousands, of missing people, taken by the government, and handed over, at least so it is believed, to the United States for torture. As the U.S. deepens its penetrations into Pakistan, and enunciates a doctrine of not requesting permission to fight on either side of the border, the level of anger over people the Pakistanis are sure have been tortured, is not something that can be dismissed.

Across the border in Afghanistan, a country that went from 600 or so prisoners before the U.S. invaded to close to 15,000 now, the issue of imprisonment and abuse under U.S. control is also prominent. While the candidates in America debate how many more brigades will solve every problem in Afghanistan, debate whether or not the Iraq war drew off so many resources that the effort there is slowly failing, and debate the policy of incursions into Pakistan which has so many Pakistanis up in arms, a very clear statement on locking up Afghans in prisons at American direction was made in Kandahar last June. On June 13th, at around 10 pm, the Afghani Taliban assaulted the prison there with suicide bombs and armed men on motorcycles. They set free perhaps a thousand prisoners.

Americans, perhaps, concentrate on the 400 Taliban that were released, the danger they pose, and the Taliban freeing their own. The deeper message is that many local Afghans were waiting as the prisoners walked out of the prison, looking for their relatives, rejoicing over reuniting with them, and thankful, perhaps for the first time, to the Taliban militias who set them free. It went this way once before. When the British were wearing out their welcome in Afghanistan, the first step in a rebellion that ended in beheadings of British officers, was freeing Afghans from British prison. The conditions of the prisons that have been filled under U.S. control is frightening. Even the U.S. military does not consider most of them fit for housing any prisoner except on an interim (two week) basis, yet prisoners are kept in pens there for months. There are reports of abuse, use of the exposure to the elements to effect sleep deprivation, pouring water over inmates' exposed skin in the winter so that it will freeze. Sleep deprivation, exposure to heat and cold, causing injuries, softening up prisoners for interrogation. Torture is an issue in these prisons too, and there have been transfers to Afghan prisons from elsewhere, as the Supreme Court of the United States has gradually clamped down on Guantanamo, and the legal theories that held that it was beyond the law (B. Olshansky, Democracy Detained). Afghanistan is the new Guantanamo, it is much bigger, more abusive, and it is still unclear whether those Supreme Court decisions apply.

In Europe, torture is an issue, American torture. Philippe Sands' book The Torture Team reflects this, as does the demands of the high court there to MI5 to relinquish information on British government complicity, and the finding that MI5 was complicit in the torture of Binyam Mohammed (Sands was involved in arguing this case as well). In Germany and France, there are efforts to bring charges for torture against American officials. The latest poll by the BBC showing that most countries in the world have definite preferences in the upcoming U.S. elections, combined with the knowledge that these preferences come from wanting a change from the current foreign policy, cannot be devoid of feelings about the tortures and abuses that have come to light.

Even in countries that are known for their harsh abuse and torture of prisoners, there is a desire that America be not among the torture states. An editorial on the Aafia Siddiqui case last month in the Arab News, the editors invoke America's Founding Fathers, and then the human rights doctrine which America has championed in the past:

This is yet another instance of how, in their zeal to fight terror, the US authorities are undermining the ideals and values that once inspired America’s Founding Fathers. More important, they are trampling on everything that the world has come to view as sacrosanct, from the rule of law to human rights to a fair trial, as enshrined in the UN Human Rights Charter and Geneva Conventions.

While candidates vie for testimonials on patriotism in America, it is tough to have our own core values and Founding Fathers invoked back to us, as a plea from Saudi Arabia, not to "play into
the hands of terrorists by confirming the worst things they say about their enemies in general and the West in particular."

Those for whom it is paramount

There is one group of Americans who are completely focussed on the issue of torture during this election cycle, you can be sure of it. There is the group for whom it is the paramount issue, and far exceeds the importance of anything else. That would be the group which, in the world as it should be, would be prosecuted for the acts of torture committed under color of U.S. law, by the military, and those who, above all, created the system, approved its application, and directed the implementation of the plan.

These are people who will not go gently into the night, should a new government have no place for them. Darius Rejali warns of such people (Darius Rejali, Torture and Democracy), invoking the Battle of Algiers, and the fall of the Fourth Republic in France. When Henri Alleg's La Question hit France, and after the claims of its untruth fell one by one, the French were faced with only one conclusion. There are, Rejali claims, only two things that a democracy can do: It can reconcile itself to the cruelties of torture, which plants the seed of its destruction through loss of its moral authority, or it can face an attempt by the perpetrators to usurp power, in order that they can avoid prosecution. Some democracies are, truthfully, already gone by the time the torture occurs. Upon restoration, they may purge themselves of what has been done in the national name. Luis Moreno-Ocampo, currently the Prosecutor at the International Criminal Court, describes this process in the movie Darfur Now, in Argentina, where they put the military junta members on trial. Moreno-Ocampo was the deputy prosecutor.

Many of the names and faces associated with the torture regime in the United States have been in power circles in the U.S. for quite some time. Some, mostly political operatives, harken back to the Nixon administration. Some were staff in the White House during Gerald Ford's term. Many were involved, either directly or indirectly, in the Iran-Contra scandal in the Reagan administration, or in efforts to create loopholes in the fabric of international humanitarian law at that time. And some were new to this administration. Many are young.

All of these people need the protection of the government. They need to either have an ironclad provision that they will never be prosecuted, or they need a continuation of the current government to the extent that their participation in government will protect them. There is a wider diaspora of people involved. There are prisoners. What will happen to the prisoners in Afghanistan, and elsewhere in the world, under the next administration? There are calls to close Guantanamo, yes. But the prisoners, in many plans, would be transferred to American supermax prisons. Those are the prisons cited by the Commission Against Torture for -- well -- torture. There is an international incident festering in the Metropolitan Detention Center in Brooklyn over the treatment of Aafia Siddiqui with regards to strip searches. Sexual degradation and abuse was also cited by the Commission Against Torture.

In short, there are people who have nothing to lose by doing whatever is necessary to prevent the exposure and prosecution of torture here in the United States. There are domestic issues that will follow any of the solutions proposed by either major candidate for closing Guantanamo into the international arena: It may seem a solution to move the nationals of other countries from Cuba to prisons in the U.S., but this means international scrutiny on the very prisons which violate international norms. The American public may be doubly surprised to learn that the rest of the world will believe we torture as a matter of course, if we do that.

One way or another, then, the issue of torture is among the most important to be discussed this Fall in the United States. And the discussion should not wait until after the election. We need to know more than whether a candidate opposes torture. That isn't enough while thousands of prisoners wait in abusive pens. It isn't enough while thousands of relatives wait for word about people who have disappeared. The moral inheritors of the black shawls and photographs of the women who stood every day in the Plaza de Mayo in Buenos Aires will be standing in front of American embassies in country after country. To them, those who have done this are no better than those Argentine generals, and deserve equal punishment. We don't just need to know our candidate will feel their pain. We need to know what his plan is to end the torture.

An Open Letter to the ACLU

2008-09-01T11:49:00.000-07:00

To whom it may hopefully concern,

The case of the supposed al Qaeda "Mata Hari", Aafia Siddiqui, is a case of significant human and civil rights implications, and has resonated as a major issue in her home country, Pakistan, as well as elsewhere. In the United States, where there is a genuine ability to affect the situation, civil and human rights groups have been strangely silent.

There is much about the whole case that is controversial. We don't know about the older allegations by the F.B.I., which were made quite publicly at times in 2003 and 2004, but were never expressed on the F.B.I. web site as anything more than that the F.B.I. wanted to question her, and had no solid links of her to terrorism. Some of them sound ludicrous, in that they require people to be at two places at one time, and require a whole second life, lived outside of any notice by her friends, thesis advisor, or anyone else.

We also don't know about the allegations of her family and of Asian human rights groups, that she was detained at Bagram for 5 years and tortured. She was listed by Amnesty International as missing and probably detained for quite a while, but we don't know who is being detained in that part of the world, and the Pakistani government lately went through major upheavals in no small part because a Supreme Court judge there ordered the government to produce the disappeared prisoners in court and charge or release them.

Much of these two sets of competing allegations, and how they are sorted out, if they ever are, will depend on a fair venue and a proper investigation. This is something everyone hopes for who has worked hard to hold the United States government accountable for prisoners, both those we know about in Guantanamo, and those whose only mark on our consciousness is that their relatives say they disappeared one day, like many in prisons far fuller than Guantanamo, abroad.

But at the current moment, we are at a far more rudimentary and basic stage with the case of Aafia Siddiqui. We must concentrate on the present, and on what is more easily verified. And the present doesn't look very good.

On June 17th, according to both the F.B.I. and two groups of police in Afghanistan, the Ghazni police arrested her and her child, Ahmed, 11, in Ghazni. They claimed she had been wandering around the governors palace and used vocabulary indicating they thought she was planning a suicide attack on the building.

They transferred her and her son to the Afghan National Police that day, after giving a "press conference" which is available in part on YouTube, and shows the police asking Ms. Siddiqui and her son questions and Ms. Siddiqui telling her son not to answer them, followed by a long statement by the police spokesman.

The next day, we know for sure, Ms. Siddiqui was shot by an American warrant officer twice in the torso, once in the chest and once in the lower abdomen, in the presence of interpreters, Afghan police, and F.B.I. interrogators. There are two versions as to how this happened, the version on the affidavit the F.B.I. filed in New York District Court says she grabbed the warrant officer's M-4 assault rifle and attempted to shoot it at them, the version from the Afghan police is that the Americans were disarming the Afghan police when she approached them to complain about police abuse, and the warrant officer panicked thinking she was going to blow herself up and shot her twice. But we know she got shot.

She was transported to Bagram for medical treatment, and remained there in the hospital for two weeks. During the time she was there, the F.B.I. and the U.S. military both denied publicly that she was in custody, or that they knew where she was. There is no indication she was registered with the Red Cross (she may have been, there is no indication). She was then "arrested" on charges of attempting to kill a (U.S.) federal agent, put on a plane to New York, and put in the Metropolitan Detention Center in Brooklyn New York. Her son remained in custody in Afghanistan. The Afghan police say they had no means to hold him, so they transfered him to the Afghan National Directorate of Security (NDS). At some point he was transfered to the Afghan Foreign Ministry.

At her arraignment, she was in a wheelchair, and her lawyers complained about lack of access to a doctor, that they had requested medical attention 6 days previously and it had not been provided. They also complained that she was subject to strip search before and after meetings with counsel. The judge made a few relevant comments, for instance, marveling over the speed of the "extradition", that he could not get an extradition from the Bronx to Manhattan that fast. He ordered a doctor's visit, over the objections of the prosecutor, who claimed that she was to high a security risk. Given that she has been talking to counsel through a food slot in lieu of submitting to strip searches, she is in solitary confinement.

The Pakistani consulate, who was allowed to visit her in Brooklyn, has also complained about her treatment, notably they asked for a Koran and proper food and an end to the strip searches.

Her bail hearing was postponed to September 3rd until she is in better medical health. There has been a new complaint about lack of access to proper medical care, and a complaint that the strip searches have been reinstated, along with having her climb stairs to meet with counsel, which her lawyers say is painful due to her injuries. The Pakistani ambassador, Hussain Haqqani, has complained again about her treatment. The Pakistan Senate has sent a delegation to try to make sure she gets a fair trial.

Which brings us to her bail hearing on Wednesday, September 3rd. It is a sad tribute to the perception of American rule of law and American justice that very few people abroad believe that Aafia Siddiqui will get anything resembling a fair trial. There are already many indications that lead one to believe otherwise:

The circumstances of her arrest. She was in Afghan custody, then she was in American military custody, then F.B.I. custody, then extradited. There were no extradition hearings in front of any magistrate, her consulate (the Pakistani government in general) was not informed of either her arrest or extradition. If she was in U.S. military custody and that custody was legal, what was her status? How can the F.B.I. make arrests on foreign soil? When a law enforcement officer (in this case U.S. military) fires on a prisoner in custody, shouldn't there be an investigation? Why were there so many conflicting stories about the circumstances of her original arrest by Ghazni police?
Her treatment before August 4th. She was in U.S. military and/or F.B.I. custody in a foreign country, her detention, even if it was for hospital care, should have been reported to the Red Cross at minimum. Why did these groups deny her custody or knowledge of her whereabouts, even to Pakistani human rights organizations, during this time? Why was her government not notified of her arrest and hospitalization?
Her treatment after August 4th. She is being held in a U.S. federal detention center. Allegations from ambassadors of strip searches in U.S. detention, not as a matter of safety but as an obvious harrassment and to interrupt meetings with counsel? Is this not an American human and civil rights issue? Is it so par for the course in American justice that American civil rights organizations have no interest? Allegations of denial of medical treatment? Both strip searches and denial of medical treatment, combined with solitary confinement (if prolonged), butt right up against the U.N. Convention Against Torture. Is the interest in this issue suspended for a person against whom there are allegations?
The detention of her son. Detaining her son, as pointed out by Human Rights Watch, is a violation of the Convention on the Rights of the Child, and of Afghan law, because of the child's age. The detention continued, and included interrogation and DNA testing, for several weeks. Only when a sharp protest was lodged by HRW did the matter move, and the Afghan Foreign Ministry now says the child will be remanded to relatives. The child is a U.S. citizen by birth. There is no interest in the civil and human rights of children forced on foreign police forces by U.S. agents intent on prosecuting their mothers?

In the coming weeks, there will undoubtedly be more issues. Witnesses to the arrest and shooting are not all in the United States, for instance, and if the F.B.I. seeks charges on its allegations of terrorism and al Qaeda affiliation, there will be tremendously important issues related to evidence in a U.S. court room derived from torture -- the F.B.I. decided she was a terrorist after Khalid Sheikh Mohammad mentioned her name during the so-called enhanced interrogation that the rest of the world calls torture. Nothing derived from that should be admissible in a U.S. court of law, or anywhere else for that matter, and this requires scrutiny.

The ACLU is not an organization that traditionally shies away from controversy. They (in older form) marched during Sacco and Vanzetti, they defended George Lincoln Rockwell, they have put up with twenty years of abuse since George H.W. Bush's famous "card-carrying member of the ACLU" comment in the 1988 debates. And this case is not without the possibility of negative public opinion. This woman has been characterized as an al Qaeda mastermind, a sorceress who has conjured up everything from blood diamonds to biological and nuclear weapons. She is being tried down the street from Ground Zero.

But before anyone debates whether or not she is a "Female Osama Bin Laden", the "Grey Lady of Bagram, prisoner 650", or anything else, can we not have some attention from the civil and human rights organizations in the United States as to the state of her current detention, and the detention of her young children? Is it no longer the purview of civil rights lawyers in this country to worry about illegal extraditions, shootings in police custody, fair trials for publicly denigrated figures, or degrading treatment and denial of proper medical care? Look what happened when Human Rights Watch opened their mouths about her child. The Afghan government jumped. They had ignored Asian civil rights organizations like AHRC and HRCP for weeks, but they jumped into action when an American group spoke up.

Aafia Siddiqui will not get fair treatment without the voices of Americans: Civil Rights groups, citizens, American media, and someday members of Congress. This is a plea for those voices. It doesn't matter who she is or what she is. The ACLU taught us that. Didn't they?

A Different Episode of '24'

2008-08-19T10:30:00.000-07:00

All facts are not created equal

A while back, I attended a medical symposium, and one of the lecturers gave a long accounting of changing medical research practices moving towards evidence-based treatments. Okay, don't get scared, your doctor is not treating you based on voodoo or divine inspiration. What the talk was about was a combination of changing standards, funding, and abilities that lead to a large body of scientific evidence that isn't all equally reliable. A study done a hundred years ago may have been an individual case study, or based solely on a couple of outcomes of a single doctor, without any sophisticated procedures in place for eliminating confounding variables, systemic biases, and a host of other plagues of good scientific evidence. Likewise a modern study may have been a pilot, or something undertaken in a small lab or with a small amount of funding, so it might not have the statistical significance of a large, well-funded, long term effort. So the doctor was speaking of going back through all the diagnostic procedures and treatments, and labeling each fact according to the level of evidence, lowest would be case studies, then small studies, then large statistical samples. This might, in some cases be a prelude to revisiting procedures, or it just might be used to inform the physician who is examining a patient about the possibilities for exceptions to what she has learned.

But it is very telling that what this approach admits is that not all evidence is equally truthful. In time, one would hope that algorithms for working with that evidence, be they human algorithms or machine algorithms, would approach the truth making necessary adjustments for the lack of certainty. More importantly, accumulations of evidence are especially susceptible to this problem, in that they grow by agglomeration, and the next fact acquired will often depend on the question asked, which in turn depends on what is the accumulated evidence so far. This is innate to humans, it is how they accommodate to their world, so it is impossible that it would be done otherwise. Periodic review, necessary to keep the accumulation clean, might as well be called peer-iodic review: it won't happen without impartial persons, without impartial protocols, or without public scrutiny, the information in the accumulation has been fitted together, and all seems therefore logically part of a seamless whole.

'24' with Innocent Prisoners

Panic and torture, therefore, quite literally destroy the truth. Many members of the forensics community, the intelligence community, the press, the intelligensia, and the blogosphere have opined that information gained by torture is unreliable. On this blog previously, I have put together a case that it produces confessions, not intelligence, that even when one believes one is listening to intelligence, one is not, one is listening to confessions, and those confessions are what the prisoner believes the torturer wants to hear. There is a larger sense in which torture is unreliable for intelligence. It is the ultimate corrupter of an accumulation of evidence, and therefore taints all the evidence in the collection, even that which was obtained by other means.

How would the ratings reflect on the following fictitious scenario for a season of the infamous dopamine/adrenalin show '24'? First hour, Jack Bauer is confronted with a terrorist attack in progress, that he can't avert. The terrorists use a biological weapon, say H5N1 in weaponized form. Simultaneously, he gets word that a bomb is lurking again in Los Angeles. He doesn't know what kind of bomb, he believes that the two events are related, he has the usual 24 hours to keep Los Angeles from being completely destroyed (Aw, come on, what's a good thriller without the famous shock waves emanating outward from Capitol Records?). Let's say that by the 4th hour, he has a suspect in custody in the bomb threat, and by this time there are 10 dead of the flu. So he lights into his guy about the bomb, and every second question is about influenza, and he wants to know names. He mentions a foreign terrorist organization over and over, having read somewhere that they are investigating just such a biological weapon. He really wants information about the bomb, but his prisoner, desperate to make the torture stop, decides to concoct a story about a plot to create a biological weapon to attack Newark, picks the name of a taxi driver he knows as a perpetrator, links it to the organization that Jack has mentioned, and says that's all he knows, he doesn't know about any nuclear devices in L.A.

Information goes out over the wire. The FBI confirms that it has been watching a group near Newark because of a SAR from a local bank. There isn't a suspect with the same name that was mentioned, but a slightly different name is linked to one of the people who donated to the group that had the SAR. They pick up the head of the group, and Jack Bauer gets his brother, Harry Bauer, to do the deed on the new suspect. Meanwhile, they put out an APB for the person with the slightly different name, and all of Newark goes on alert. Intelligence operations are launched, and epidemiologists are brought in to figure out how the 10 cases of bird flu could have originated in Newark, and all passengers on flights between Newark and Chicago are searched and tested for flu. One tests positive, and is taken into custody. Information about a bomb threat in Los Angeles is modified, because of data taken by Harry Bauer, who tortured his suspect and got ties back to the original suspect, confirming that everything the original suspect said during torture is true, and gave all the details after being grilled on Los Angeles and the bomb threat, of a nationwide plan, originating in a cave in Uzbekistan, to launch H5N1 bird flu in Los Angeles using a modified fuel-air bomb that will spray aerosol bird flu and create poisonously infected "colloidal smog" by reacting to the sunlight. Interpol is alerted in Uzbekistan, the Uzbekis begin to round up the usual suspects, who under harsh treatment themselves, admit that they bought 100,000 contaminated chickens with money from the Newark charity, but only for Uzbeki soup kitchens.

By this time, everyone who has been tortured is guilty, a large conspiracy has been revealed, there is confirmation from "independent sources", and there are dead people. The fact that none of the burgeoning plot and scenario has any basis that cannot be traced back to torture, or to hypotheses formed on the basis of information linked to torture, has not occurred to anyone collecting intelligence, or attempting to defeat the terrorist attack on Los Angeles. At this point, they locate the taxi driver, and he is a man who has overstayed his tourist visa by 3 years, and hails from Uzbekistan. It is learned that he had a license to practice medicine back in the old country. He is located and chased down in a manhunt, arrested at gunpoint, and is shipped back to Los Angeles on a Gulfstream jet with tail numbers N950-???, stripped, shackled, hooded, and with an anal suppository. In actuality, he knows nothing about the whole plot, is scared for his family now that he has been busted on what he thinks is an immigration charge, and his family sees his picture on the news, "Terrorist Kingpin Arrested, Flu Bomb Imminent".

What will happen now? He is the nexus. There is no way for him to carry on the forensic chain letter, his ignorance will be interpreted as Manchester Manual training, and any admission will be checked, and if it comes up dry, he will now be asked again. If the bomb doesn't go off on schedule, the terrorist network is still in existence, confirmed independently by Uzbekistan, and potentially dangerous "suspects" with Uzbeki names begin to fill federal databases and watch lists. Three months later, after severe sensory deprivation and sleep deprivation, he begins to crack, and admits to a series of crimes he's been asked about. He names names. The cycle begins again. As more links are formed in what may have been a very clean database to begin with, more and more of the database is corrupted by the tortured confessions. They go back to this man, over and over again to get more information, over a period of years. Finally, during one interrogation, someone gets furious at their frustrations with being unable to keep their country safe, and the man is beaten to death. Two years later, the 10 cases of bird flu are attributed to an immigrant from West Africa who was sick when they boarded a plane, but hadn't exhibited symptoms yet. A story that a great threat was averted circulates, an investigation over the death of the taxi driver finds that everyone acted in what they thought was the best interests of national security, and papers write about how it was a different time then.

True confessions in a place where truth does not exist

Notice how, in this fiction, the corruption spreads through the facts, changing them to support theories derived from torture. Notice how the torture becomes focussed on gaining intelligence about those changed facts. Notice how confessions -- answers to questions the prisoner believes are already known and will assert his cooperativeness -- are mixed inexorably with intelligence. It's hard to overemphasize this: The prisoner is giving facts that will prove his cooperation, not his reliability. Cooperation stops torture, and the prisoner has only one goal. Confessions are always a sign of cooperation. Embellishments are meant to convince the torturer that the prisoner is cooperating. Embellishments become the subjects of the next interrogation. So the plot can only grow larger. The urgency can only increase. The torture must become harsher. The torturer and his accumulation of fact must separate from reality over time, there is no force pushing in any other direction. When the nexus is captured, it is impossible to presume innocence, because it is impossible to re-anchor the process in reality. It is impossible to know how many changes to the fabric of the case have been made from each wrong fact, so it is impossible to return to a state of null suspicion. With no reality, there can be no innocents.

In the end, there is no database that has touched tortured information that still represents the truth. And in the end, the most harshly tortured person will always be one who is at the nexus, but is innocent.

The Refoulement of Dr. Aafia Siddiqui

2008-08-11T16:18:00.000-07:00

One of the psychological coercions that many of the former Guantanamo inmates, and other inmates have alleged that U.S. interrogators subjected them to has been the sounds of a woman screaming, which they are usually told is their wife. They are often told she is being subject to abuse, including rape. Moazzam Begg, a former prisoner of both Guantanamo and of Bagram, in Afghanistan, related (Begg, Enemy Combatant) that he at some point decided it was not his wife he heard at Bagram, at a later point he decided it wasn't a tape, either, but a woman prisoner. The United States has repeatedly denied that there are female prisoners at Bagram, nevertheless, in early July of this year, Yvonne Ridley, a British correspondent, and an activist for Cage Prisoners, made a plea to free the prisoner known only as "Prisoner 650", whom she cast as "The Grey Lady of Bagram", in reference to her ghost detainee status.

As usually happens with any story like this, it continues to get stranger, and the U.S. government's behavior continues to become completely inappropriate. A short while later, also in July, the Asian Human Rights Commission (AHRC), a respected human rights group in Asia which tracks abuses in Central, South, and Southeast Asia, and elsewhere, put out an urgent appeal, in which they linked the Grey Lady and Dr. Aafia Siddiqui, a Pakistani Ph.D. who went missing in early 2003, along with her three children, and has long been believed by Amnesty International, Human Rights Watch, and others, to be in secret detention in United States custody.

Then suddenly, the United States, which had maintained that it didn't know her whereabouts, even though there were assurances to her family by Pakistani authorities that she was in custody, did an about face, and claimed that she had been arrested in Ghazni, Afghanistan, southwest of Kabul, carrying bottles of liquids supposedly for making explosives, with a copy of, or xeroxes from the Anarchist's Arsenal in her purse, and her eldest son (currently 12). We note in passing, just for completeness, that the Anarchist's Arsenal is available from Amazon books. Allegedly, American officials, consisting of U.S. military and FBI agents, arrived to question her, and she allegedly grabbed a gun that had been put on the floor near her (she was allegedly behind a cloth screen), and began yelling and shot twice, allegedly at the Afghani officer, and yelled "Allah Akbar" and "Get the fuck out of here." The U.S. military shot back and supposedly wounded her in the chest (although she now has a wound in the lower abdomen), after which they wrestled her to the ground, which supposedly required several American males to do, she was finally subdued when she passed out from her injury. For completeness, and also because it came up in court, she weighs less than 50 kilos.

Yes, court. She was then supposedly treated in Afghanistan, extradition was approved by the Afghan government, and she arrived in New York City to be arraigned in court on charges of attempting to kill a U.S. federal officer, on August 3rd. She was apparently too weak to do this, she answered affirmatively when asked if she understood the charges, but then shook her head "in disbelief". The judge made a remark at the speed with which she was extradited, saying that he couldn't get a person extradited from the Bronx to Manhattan in that time. A bail hearing was set for August 11th. Her lawyers asked for medical treatment, claiming that she was "oozing", and that she was exceedingly weak (the new photo of her does not look at all healthy, she looks emaciated and her skin color is not good, her nose has been broken at some point). The judge ordered medical care for her as well.

Support for her case has been building all week in Pakistan and elsewhere, articles openly disbelieving the FBI story and calling for her fair treatment in court have been published in Britain, across the Middle East, in India and Pakistan. Rallies have been called in Pakistan in Karachi, Lahore, and Islamabad. The widely distributed story is that she is indeed the Grey Lady, that she has been tortured, and raped repeatedly, and held for 5 years in Bagram. AHRC published an assessment of her photograph, calling her dehydrated, and alleging a broken and badly set nose, and offered information that she is believed to have had a kidney removed for some reason while in captivity. Human rights organizations have not backed down from their contention that she has been held in Bagram or at a black site. The FBI for its part is contending that she has not been in custody. Her family has contended for years that her mother was told of her detention by a Pakistani official on a motorcycle who came to her house, informed her of the arrest, and warned her not to talk publicly about it. They believe the person was from the ISI.

The protests in Pakistan charge General Pervez Musharraf with selling her to the Americans. It has taken the dislike of Musharraf, whose position is more than precarious right now (the U.S. government went from maintaining a stance of backing following Pakistani law, and leaking doubts that the coalition government could really impeach him to pleading with the Pakistani government for him to be retired with dignity) to new heights, with banners that read, "How many dollars is one Pakistani?" , and while the flags being burned are American, the slogans are in anger at the Pakistani government's collaboration with a nation which they believe disappears and tortures their countrymen, and now their women, and their distinguished scientists (Dr. Siddiqui has a bachelors degree from MIT in biology and a Ph.D. in cognitive neuroscience from Brandeis University, Separating the components of imitation, 223 pages, 2001., on visual memory and imitation of visual cues). The case is also being picked up by the Pakistani lawyers' movement, since the judiciary was sacked by Musharraf last November largely to avoid having to produce some of the 500+ "disappeared" persons into court, as ordered. Many feel that the United States was behind the sacking, and that the U.S. currently opposes restoration of the Judiciary, especially Chief Justice Iftikar Chaudry, who had ordered the "disappeared" prisoners charged or released, and above all brought into court to face their charges.

All of which brings us to today's hearing. Aafia Siddiqui was due in court in New York this afternoon for a bail hearing. When the hearing convened, she was wheeled into court in a wheelchair, and her lawyers asked that she be given immediate access to a female doctor. I don't have more complete information than that, yet, but my guess is they also asked for appropriate food, a copy of the Koran, facilitation for prayers, and filed a complaint about a requirement for a strip search every time she meets with anyone from outside the prison. The reason I believe these are the other requests is that she was granted a visit from the Pakistani consulate, and he asked for these things in a letter to her lawyers on behalf of the government of Pakistan.

Torture and harsh treatment have now reached our shores, even before any of the Guantanamo detainees have been able to appear in U.S. courts (that is if Congress doesn't pass yet another circumscription of habeas corpus again). Siddiqui had not seen a lawyer until just prior to her arraignment because of the search requirement, which violates her sense of privacy as a Muslim woman (she asserts), and seems an odd requirement for someone who is already in custody, except that it parallels treatment of al-Qahtani at Guantanamo (Philippe Sands, The Torture Team), and of numerous prisoners at Abu Ghraib. Denial of medical treatment started for this American government with the "high-value detainee" Abu Zubaydah in 2002, Jane Mayer quotes the President of the United States as having asked "Who authorized putting him on pain medication?" (Mayer, The Black Sites, p. 143). Abu Zubaydah had been shot 3 times and fallen off a roof as a result).

The prosecutor in court today claimed the reason that Aafia Siddiqui had not seen a doctor yet in 6 days since the judge had ordered medical care was that it was a "complicated situation", because Ms. Siddiqui was a "high-security risk" (Withholding medical care is a violation of Common Article 3 of the Geneva Conventions, whether or not the prisoner is considered combatant or civilian). For a point of reference, after Abu Zubaydah was captured, the government felt he needed to be kept alive at all costs because he had such important information, that they immediately flew a Johns Hopkins surgeon from Washington, D.C. to either Pakistan or Thailand, to do the operations needed to keep him alive so he could be "interrogated" (Mayer, The Black Sites, pp. 142,ff.). Another reference point, just to put things in the starkest terms, Ms. Siddiqui has supposedly had some of her intestines removed as a result of the wound, she is already missing a kidney (relevant where septic shock is concerned), and it is unclear whether it is just sepsis or whether she may be bleeding internally. Should we inquire of John Yoo as to whether or not that constitutes pain consistent with organ failure or death? It would under the protocols from which those tests were lifted. There is now a new allegation that Aafia Siddiqui may have suffered brain damage at some point. She has, herself, said she was imprisoned, and tortured, but is now not talking about it on advice from her lawyers, but one comment that got out first was that she had trouble describing where she was held except that it was very small.

There are many things about this case that are very hard. The reputation of the United States when it comes to detention is such that it matters very little to other countries at this point whether or not American authorities are at all capable of telling the truth, it is assumed they are not. Allegations of rape of a woman, when added to any other charge leveled at a foreign government are about as incendiary as any, and have been for thousands of years. Her children have not been accounted for by U.S. authorities no matter what story of custody is believed, and that is unacceptable under international law. Pervez Musharraf now stands accused of illegal refoulement, of human trafficking, and of sending his countrymen and women into the hands of the U.S., whose agencies, the military, the FBI, and the CIA, are all assumed to be, unless proven otherwise beyond all doubt, and that seems unlikely, agents of torture, abuse, and defilement.

There is a limited time left for the Americans to quit their current arc of medical mistreatment and do what the need to in order that Aafia Siddiqui regains her health. It has now become a full diplomatic matter, since the Pakistani government has made public pleas for a fair trial at the very least, and is requesting that she be returned to Pakistan and her children restored to her. U.S.-Pakistani relations are having their bumps already right now, and with 584 U.S. soldiers dead since the conflict began in Afghanistan, the United States cannot afford to lose more diplomatic face in that region. So at this point, it matters very little what Dr. Aafia Siddiqui may or may not have done. For the record, her colleagues (those who remember her at MIT and Brandeis) no more believe she is al Qaeda than those of Bruce Ivins believe the FBI right now.

What thousands of people around the world do believe, in her case, is that she is the Grey Lady of Bagram, prisoner 650, whose screams were heard by multiple independent sources, who was said to have lost her mind from repeated rape, for some time, whose children are missing, that the U.S. does not want her to have a fair day in court, and that she is the victim of many American war crimes, including torture, rape, and disappearance. If she also dies from want of medical care, it will be seen as murder, no matter what the U.S. government decides to call it.

One of the consequences of a reign of terror is that nobody believes the country of the perpetrators anymore. For a test of this, how much of what I have written here, did anyone see on American TV?

On Seeing the Future

2008-07-31T18:44:00.000-07:00

It's possible to see the whole transition from a government based on liberty to one which is based on secrecy, on what is done in the dark, on spying and torture, as a problem with power and being wrong. As this unfolds into a panorama, it envelops even the science and science fiction that are the mores and mythology of a forward looking society, and takes the beautiful mystery of the future and turns it into the dark substance of fear. And then the mechanism which causes Darius Rejali's inevitable descent for the democracy that succumbs to torture (Rejali, Torture and Democracy), and turns it into a grotesque neurological event.

I just got done watching Paycheck three times in a row, after watching Next seven or eight times. I thought about watching Minority Report, too, somehow Philip K. Dick's notion of the future, or more appropriately, the screenwriters and directors reincarnations of his stories into Hollywood thrillers, contain a strange future, that is malleable, but that changes in unpredictable ways, as Nicholas Cage says in Next, "Because you looked at it." When his heroes try to control the future, evil follows, when they learn to trust the future, they triumph. Since they are heroes, then, the movie ends when they have trusted the blindness of not knowing what will happen next.

Actually, perhaps seeing the future should be given the instinctual pull of a classic Freudian drive like sex. We require it, we need it, if it is offered to us, we will take it, neglecting much else to get it. Take it away, and we retreat into a scared shell. We are filled with it. Consider: A cup falls off your desk, and your hand snaps out to catch it. Your very real hand meets the very real cup in the very real present, but your perception of everything is old. Your vision system has taken milliseconds to interpret the scene, your brain has taken time to retrieve or formulate a reaction, and then your hand meets the cup -- by seeing the future by a few tenths of a second.

You converse with another person. The whole time you are talking, both yours and the other person's mirror neurons are mimicking what the other is doing, helping you to predict what they will do in reaction to your words. If the future goes blank, if you are totally at a loss to predict how the other will react to you, you become fearful and uncomfortable, usually. Denial of any form of information about your surroundings that you are used to having produces anxiety. Being granted even the slightest extra vision of the future is a tremendous advantage: When a dangerous situation occurs, those who are in it will frequently report afterward that "time stood still." It doesn't really, it does seem to move slowly. If one is trained to take advantage of this shift, one is functioning at normal speed and solving the problems involved with our limited abilities to predict the future instantaneously, with the advantage of a few tenths of a second. This training, which some practice in martial arts, for example, means an enormous difference of advantage.

Power perverts this already extremely strong desire for the future. Perhaps it is because the population is so high now, to get to the top of a sizable hierarchy, you have to have advantages and plans, and aggressiveness. And the loss of that position is so much more precious when it takes a lifetime to get there. If there is any accountability, and there tends to be in free and open societies, then a mistake will cause that fall. So where power is involved, there can be no mistakes. And this produces two perverse consequences: Any mistakes that do occur must be covered up completely or recast, and further mistakes must be prevented at all costs. The human way to do that is to know the future.

Isn't this what was bragged about, to Ron Suskind, that famous quote?

The aide said that guys like me were "in what we call the reality-based community," which he defined as people who "believe that solutions emerge from your judicious study of discernible reality." ... "That's not the way the world really works anymore," he continued. "We're an empire now, and when we act, we create our own reality. And while you're studying that reality—judiciously, as you will—we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors…and you, all of you, will be left to just study what we do."

This is an exposition on the nature of the future and of power. The implication is that the actors create the present and the past, and that the "reality-based community" perceives the past. By controlling the present and past, the speaker is saying that they know the future, in this case because it is what they choose it to be. The speaker is alluding to the fact that this is complete power. Whereas knowing the future, even a little bit of it, with total certainty, confers an awesome power, controlling the future, in this case all of it, confers total power. The listener is left to believe they are powerless, and that they would not or could not understand the future. As much as this statement has been mocked, as much as the hubris to which it points has been pointed out, its equation of control over the future to power is as correct as it is shocking.

It lays out the formula for the special forms of mental torment involved in purely psychological, scar-less torture, too. Philip Zimbardo talks about the collapse of time perspective in the Stanford Prison Experiment (Zimbardo, The Lucifer Effect, pp. 243 ff.), that prisoners "magnified their focus on the awful present by talikng about the immediate situation and rarely about their past or future..." The lack of knowledge of the future becomes extreme with threats of death, or threats of being incommunicado ("no one will know what happens to you"), and reaches a psyche destroying level when the senses or social interaction are deprived. Ultimately, the mind shreds when there is no longer any sensory input, and all avenues to predicting what will happen next are robbed from the prisoner. The ultimate form of helplessness is in not being able to form any conception of the present with which the brain predicts the future to decide its next action. In infant animals, deprivation of the senses leads to loss of the senses, as different sensory organs compete for space in cortex. As animals mature, there are two processes that accompany sensory loss, the lack of synapse (connections between neurons) production, and the inability of the brain to prune connections it has made, a necessary process to weed out faulty ones and strengthen pathways that form useful memories. The brain invests nearly all of its memory energy in creating productive ways to predict bits of the future. As its ability to do so is impaired, it begins to lose that ability, a sort of future looking atrophy, if you will.

Consequently, the ability to predict the future is an empowering thing, the ability to control the future, or control the future of another, is power and control. In a world where this is all there is, information control becomes paramount. Secrecy is a form of control, it prohibits an opponent to form correct models of what will happen next, it prevents mistakes from having occurred. The grip on power is preserved if mistakes do not occur, mistakes are the incorrect prediction of the future. In this model, which perverts the desire to know the future into an obsession to control it, mistakes occur for two reasons: the perpetrator did not know the future with sufficient clarity, and, the opponent knew too much of the future and gained advantage.

Thus the intelligence officer being pressured to get more intelligence is made to feel that he or she has caused harm by failing to procure information. Leaks are blamed for anything from a lost initiative to a bungled war, because secrecy is paramount when control of predictions is the battle. As the price for being wrong increases, which it does with the exclusivity of the powerful position, the drive to know or control more and more of what will happen becomes extreme. No price is too much to achieve the predicted outcome, because faith in the prediction is the source of power.

And at the bottom of this information/power structure, the interrogator comes to hate the prisoner, which allows the descent into mistreatment. With each more abusive technique, the prisoner who doesn't divulge information is thwarting the objectives of the interrogator, preventing the intelligence from being collected, rendering those for whom the interrogator cares powerless and blind. Soon attempts to force information out become revenge. Soon confessions replace information as the desired reaction. Confessions are a form of the prisoner accepting the interrogator's reality, they confer power, the power to dictate reality. The punishments remove the power to control oneself. Breaking the prisoner becomes the goal.

There is a word for breaking a person or depriving them of all predictive abilities so that they cannot in and of themselves see what will happen to them. There is a word for it because it forces their psyches to turn all of the senses on full blast with an increase in adrenalin. There is a word for the practice of causing unreasoning fear and panic, that sense they have of not knowing what to do to remove themselves from either the pain or the uncertainty of the present. There is a word for depriving someone of their future to manipulate them. It's called terrorism. And people who practice torture, who order the destruction of one person's future to service their own control of the future, who derive power by controlling the future that rightfully belongs to others, are nothing more or less than terrorists.

I did go back and watch Minority Report. Agatha, the pre-cog, reminds people, she whispers and she screams, that people who know their own future have a choice. History's actors, then have more choice than most. And people who have a choice should be responsible for what they have chosen.

The Letter

2008-07-16T18:51:00.000-07:00

We have collected over a hundred signatures, and the letter will be mailed to the Hague. Thanks to all who signed.

Note: The following is a letter which will be mailed to the Office of the Prosecutor at the International Criminal Court. Below the letter there is a sign up for leaving your name, email, and location for adding your name to the letter. The list of names will be printed with the letter when it is sent. If you wish to keep your information private, please check the private box at the sign-in after clicking "sign letter" (your name will still go on the hard copy letter). Please leave any organizations or credentials you want included with your name in the comments field there. Note that the letter identifies we who sign as "Americans".

Please report any problems by emailing me.

ondelette

Luis Moreno-Ocampo, Prosecutor
International Criminal Court
P.O. Box 19519
2500 CM, The Hague

Dear Prosecutor Moreno-Ocampo,

We are writing to you to ask that you undertake an investigation of the government of the United States of America for the crimes of torture, and cruel, inhuman, and degrading treatment. The Rome Statute provides that only the Security Council or one of the signatories may bring such charges, but also provides that the Prosecutor may do so if he finds grounds to, after an investigation, and provides that anyone may request that the prosecutor begin such an investigation. It is under this latter provision that we make this request. We are, as informed American citizens, too well aware that the United States is no longer a signatory to the Rome Statute. However, we believe that even so, the investigation itself, together with its findings, may have the power to push the United States Congress into action, and we believe that it will satisfy a necessary prerequisite for other signatories of the United Nations Convention Against Torture, Cruel, Inhuman, and Degrading Treatment (CATCIDT) to begin investigations and prosecutions to which they are entitled if the United States refuses to do so.

Evidence that torture has been committed is plentiful, and your office has examined some of it before, and had found that in specific, for crimes committed during the Iraq War that you could not prosecute because, while “…any crime within the jurisdiction of the Court is “grave”, the Statute requires an additional threshold of gravity even where the subject-matter jurisdiction is satisfied.” You observed that under Article 8(1), “the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”¹.

Since that time, there has been further accumulation of evidence, and release of U.S. government documents and reports, committee hearings and testimony, and news reports, indicating that the commission of these acts was indeed part of a plan, and policy, that the plan carries at least the signatures of lawyers at the Department of Justice² and the Department of Defense³, and of the Secretary of Defense⁴. Documentation exists from two news bureaus, ABC News⁵ and the Associated Press⁶, that the Principals group of the United States National Security Council, consisting of the Vice President, Secretaries of State and Defense, the Director of the CIA, the Attorney General, and the National Security Advisor, met in the White House and approved techniques amounting to torture for specific prisoners in great detail. When questioned about this report, the President of the United States acknowledged that he both knew of and approved these meetings⁷.

Since that time there has also been further documentation of evidence: we call to your attention, most recently, the report of the Physicians for Human Rights, Broken Laws, Broken Lives⁸, and the report by Human Rights Watch, Locked Up Alone⁹. We also call to your attention the Department of Justice Office of the Inspector General report, A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq, Special Report¹⁰. There are many, many other sources, your office is no doubt aware of them, and we would be happy to do our part to find them for you as needed. The American Civil Liberties Union maintains a searchable repository of documents¹¹ related to these matters obtained by Freedom of Information Act, as well.

The documentation flowing from the Office of Legal Council, and from the Counsel at the Department of Defense, leaves no doubt that these actions were planned and “approved”, that members of the government believed they were entitled to abrogate international treaties and redefine others, and that the procedures were generated and approved throughout the entire chain of command, with express approval for some of them by the President of the United States. There cannot be any doubt anymore that there are sufficient grounds for investigation and prosecution, given that the terms of Article 8(1) that the crimes were part of a “plan or policy” are satisfied by these documents, and this was the missing criterion before.

We would also like you to address the behavior of our government in the face of these credible allegations and reports. The United States Congress has repeatedly acted, by passing restrictions to the habeas corpus and to the War Crimes Act and Torture Act, in violation of their mandate under the treaties to investigate and prosecute, and can even be said to have shielded those who planned, and created policy, and committed these crimes from prosecution. The specific statutes are the Detainee Treatment Act of 2005 (DTA), and the Military Commissions Act of 2006 (MCA). Habeas corpus is a constitutional matter, but it is also a treaty obligation: We remind you that forms of this fundamental right are written into the Geneva Conventions and the CATCIDT, as well as into other treaties to which the United States is party, and its attempted circumscription in U.S. statute is very much part of the insulation from prosecution for these crimes. We would also remind you that the military commissions formed on the basis of the MCA are proceeding to trial, and intend to use coerced testimony, in violation of the CATCIDT.

The Congress of the United States is the body that prosecutes “high crimes and misdemeanors” of the office of the President, by independent prosecutors and by impeachment. They have repeatedly failed to do so, and instead have passed the aforementioned acts. We believe that they are in violation of the provisions, Articles 5, 6, and 7, and Articles 12, 13, 14, and 15 of the CATCIDT, and Articles 129, 130, and 131 of the Third Geneva Convention of 1949 and Article 146 of the Fourth Geneva Convention of 1949, which we believe require our Congress to effect such investigations and prosecutions with due respect for these treaties and with due haste. Therefore, we would ask that you further consider the role of the Congress in your investigation, and determine whether or not it has failed these obligations sufficiently as to indicate that the United States Government does not intend to prosecute war crimes in good faith.

We are American citizens, and it is painful to have to ask that our country be subject to the shame of having its government investigated for war crimes. We do recognize, however, that the only way for the United States to regain its good name, and it did once have a good name and still does in some matters of human rights and humanitarian law, is for those who have abused the power entrusted to them by the American people, and have perpetrated grave crimes on the citizens of other nations, to face justice. While we again acknowledge that the International Criminal Court does not have the power to do that, due to these same abusers removing our signature and refusing to ratify the Rome Statute, we feel nonetheless that an investigation and charges by your office will enable others to do what our representatives apparently cannot, and stop the downward spiral away from international law that our government is engaged in. There is ample reason to believe that the criminal abuse and torture continues, so this is something that must be done, and there will be consequences and victims if it is not done right away.

We thank you for your time and attention,

The Signing List is now closed

The War Against Finding Out

2008-07-12T08:48:00.000-07:00

The latest revelation from Jane Mayer, and there will probably be more, once her book is more widely read, is that a CIA source described a 2007 document from the International Committee of the Red Cross, in which the ICRC called the treatment of Abu Zubaydah, who was captured in 2003, "categorically torture." Journalists who say we already knew that are correct. But to each journalist who makes such a statement, the question must be posed, "So what?"

Does that mean it isn't news? Journalists frequently cover any leak of confidential information as news, just the fact that it got leaked is usually enough. When a member of a political elite writes what has come to be known as a "Kiss and Tell" book after leaving office, most of what is in the book is not new. Nevertheless, for a good week afterward, people discuss the one or two choice tidbits someone found and promoted, or they talk about the impact of the book, or they editorialize on the stance of the author or even the author's loyalty. None of that is news.

There is a reason for failing to cover these stories when they first come out, reasoning that it is not current to continue to talk about them after they come out, and then criticizing new and subsequent revelations as "not news." It is avoidance behavior. There is a great reluctance to cover stories that the government of the United States officially sanctioned torture in secret, signed off by the President and his highest level advisors. There is no reluctance to portray torture in films, videos, TV shows, or computer games. But as often noted here, the portrayal is very different from the reality. There is no reluctance of officials acting like they need to be tough enough to commit torture, and to imply that people who wouldn't are not up to the task of defending the nation. There is no reluctance to engage in endless political debate in the press about enhanced interrogation techniques and to use the word waterboarding as frequently as possible.

Too Big To Fail

So what is the reluctance? I've been told that torture doesn't sell, that it's a fringe issue. The makers of '24' would beg to differ. We get told the American people do not want to be battered with stories of what America has done wrong. There is some truth to that. But let's talk about the expression that was all over the news this morning, the day after Treasury Secretary Henry Paulson came out with a plan for backing up Fannie Mae and Freddie Mac in the latest evolution of the problem variously known as the mortgage lending crisis, the loan crisis, or virtually any term of endearment that precludes the use of the words "scandal" or "crime". Let's talk about "too big to fail".

What on earth does "too big to fail" have to do with the government's torture program, with torture in general, with anything at all about the issues of torture and human dignity?

Everything. The expression is used in financial news whenever it is being asserted that the rules of the "market" will be suspended because of the dangerousness of the situation, and the urgency of the need to have a solution. Because this is a torture blog, and because that way of framing the invocation of "too big to fail" clearly puts it into a class of arguments seen frequently in torture debates, we can call this the ticking bomb invocation. It will invariably be issued together with an invocation we will call the collegiality invocation: That only in extreme circumstances which have never been met in the current case, are the individual players to be held responsible. In most cases, complaints about these two invocations being raised will be dealt with using the complexity invocation: The situation is very complex, that is why it will be mentioned only briefly in the media (consumers don't like issues that cause their eyes to glaze over), and that is why, even if the invocations look totally inappropriate, unfair, or unjust, they are the right thing to do anyway.

But perhaps if we knew how many of these large problems were running simultaneously, how many of them have the same players, and the same time frames, and the tactics were compared in each crisis, we might shed some light on how big the problems really are, and what is preventing a solution to them. The current mortgage crisis has roots in free market ideology, that has been referenced in articles about it. Lenders were under no scrutiny as they made more and more risky loans, and financial players appear to have had no checks and balances on an industry that came up with more and more creative ways to package these things. Those who were supposed to be watching for problems, the bond ratings people, were not functioning properly, in part because the risk involved was being concealed by arcane financial instruments, but more fundamentally because there was a transmutation of a statistical tool -- diversification -- into a religious entity. Any risk therefore was ameliorated by diversification, and when combined with another tool -- slicing -- which purported to divide the loan bundles up by risk and charge based on security for the product. The net result was a system in which any amount of risk would only produce a corresponding set of slices, and all of it was available to create profit. Except -- if the market itself went bad. Diversification does not change the outcome when all of the values go down, only when some of them do and some don't. And at that point, the presumptions in the slicing mechanism are wrong.

Why was this being done? We hear from plenty of sources now that common sense was suspended. That usually indicates some pressing need, or some ingrown secrecy. The pressing need was the need for very high gains. The need to pretend that the economy was supporting large gains and that it was growing came from a lot of different sources, one in particular was the rapid inflation of costs in health care. When health care costs are rising in double digits, then investments used to pay them -- it is an insurance scheme, after all -- must also rise quickly. So the large funds that must invest to pay for this must also realize double digit gains. Simultaneously the portion of the economy that depended on consumption was rising. But consumers weren't seeing that kind of rise in their wages, which track various cost of living indices. So more and more nefarious schemes needed to be created to separate consumers from money they had in their material goods -- principally their houses, but also in other forms of getting them to borrow. This was done by selling them mechanisms for spending their equity, and borrowing to spend. So underpinning the whole system was a large and diverse marketing campaign to get the American public to do something that violated their common sense by promising them something that they could not have had otherwise.

One can go back into the roots of this whole problem, and come out with players who were dismantling the safeguards and long held beliefs about borrowing beginning in the 1980's. One can find the players in the Reagan administration who shifted the health care industry to a for profit industry and created the current interlocking network of managed care, insurance influence on medical practice, physicians joint ventures and most of all deregulation. These were supposed to be part of a solution to rising costs and became the problem (Barlett and Steele, Critical Condition). One can go back into the roots of the changes in lending practices and find the loosening beginning as the derivatives market started up. Technology created new ways of putting together complex sets of probabilities and new ways of betting (although people in the industry hate that word). That provided the tools that were later used for giving out mortgages on less than solid finances.

Technology also provides another interesting puzzle piece: Information about technology that is not common knowledge can make it impossible to understand what has been done without significant analysis. This might be known as the analysis hurdle. It was on full display during the FISA Amendment debate. The NSA was holding all the cards. The public did not know key elements of the debate, which leaked out slowly -- that databases were involved; that the minimization procedures, as applied to databases, for which they were not designed, left a big loophole; that the loophole had already been tested before the FISA court: rollbacks were not required by the court and there was precedent for it in that setting. Without that information the new bill might seem innocuous. With it, the new bill meant that databases on all information on the internet, including that on all Americans, could be compiled.

One can see the dot com bust as the cataclysmic event that caused the financial industry to squirm and lash around looking for a place to make the gains they had become dependent on after the crash of the companies that weren't anywhere near as solid an investment as they had seemed when they were lavished with funds. One can see the non-bubble, non-cyclical deep problems pushed to the side, the use of knowledge of a few short years since the 1960's passing for expertise, the applications of tools for one problem to solutions of another. The federal reserve working to create the housing market to solve that problem with no one looking at the big picture. One can see the same players recycle from crisis to crisis. Part of why this happens is something that we might call the expertise principle. This principle might say that whatever situation occurs in crisis, and by in crisis here we mean as news requiring expert commentary, the situation is a modification of previous situations. Many times this may be true, but when we are invoking the principle, it is because it is not.

Consequently, although my broker had predicted a market downturn around 2000-2003 well before the dot com bust, based entirely on non-cyclical information, the removal of money from bank accounts to the stock market was due to peak around then, that would have created a scenario that had not been seen before, and so it did not occur, because an expert cyclical business recessions would not be an expert. If the facts conflict with the asserted distribution of expertise, the facts are rejected. This is a subtle version of what might be called social framing, in reference to the cognitive variety that George Lakoff presents. In this version, we reject the facts because they do not correspond well to the social frame of where the expertise lies and who the players are, in Lakoff's version (George Lakoff, Don't Think of an Elephant), we reject the perception because they do not correspond well to the cognitive frame of how we believe reality to be constructed. When this produces enough dissonance to finally be undeniable, we get the denial of expertise invocation, in which history is presented as a case where the experts were uniformly wrong. The current classic example of this was the existence of Saddam Hussein's weapons of mass destruction. There is a denial of the existence of experts better than those usually heard from who said he didn't have them, even though there were such experts, who, in retrospect, had better credentials of expertise than those who were wrong.

All of these actions and invocations work together to change the public perception and prevent change in a system that has just shown a serious or unconscionable result. Even without malice of forethought, these forces will prevent serious inquiry into the causes of a catastrophe, because they preserve the social order. And a lot of information that never, ever comes out, a lot of players who never seem to suffer any consequences for their action. And above all, invocations of complexity, and the ticking bomb: Something must be done now, regardless of norms, standards, laws, or dire things will happen. The situation is too complicated for anyone to understand. While the situation was building, it was nothing to worry about because we had seen it before under the expertise principle, and once it broke, there was uniform surprise that anything like this could occur. And finally collegiality: The players are not accused of crimes, even if they occurred. The problems are re-cast as political differences, competing theories. We don't put people in jail for theories, we have free speech and academic freedom, and besides, it was a crisis, we had to do something, times were different, you have to understand.

No matter what your opponent, or your co-conspirator for that matter, has done, it does not rise to the level of action, because no one wants to feel that their own actions might be so judged - even if they themselves have done nothing wrong. Regardless of how egregious the behavior of a colleague on the faculty at many academic institutions, the discussion of terminating a tenured professor will turn entirely on the question of whether or not taking action will lead down a slippery slope that will eventually threaten all the professors on the committee discussing the tenure review. It would only be in the case of public outcry so loud that it might threaten them from the outside that such an action would be taken, no matter what the alleged action or how despised the perpetrator. Sometimes this is a good thing, it limits all process to strict procedures and written terms for which tenure may be overridden. Usually it never gets to a full examination of those procedures, the idea of doing such a review will get shelved well before people debate the fine points of the removal process.

The War At Home and the War Against The People

One more input, and then we are ready to go back to figure out why the torture debate is forming the way it is. The roots of the war in Iraq. It has been obvious for a while now that some of the arguments and motivations all around in this war have their roots in the Vietnam War, the perceptions of why it was fought and how it was fought, the perceptions about how it concluded and why. Depending on point of view, these perceptions vary greatly. Depending on how much time and attention has been devoted to any given point of view or course of subsequent action, reactions and perceptions vary from extremely simpleminded to extremely complex. The overriding action that is important for this analysis is the interdependence between the progress in the war and the public perception at home. There was even a name for it at the time: It was called the War At Home. Famously, Simon and Garfunkel's Seven O'Clock News/Silent Night has in the background, "[Former Vice President Richard] Nixon also said 'Opposition to the War in this country is the greatest single weapon working against the U.S.'" Combined with an influential book called The Selling of the President 1968, there were the roots of a conscious manipulation of public opinion using marketing tools to influence politics and policy, and the belief that part of fighting a successful war was to fight the war at home, and that the decision of whether or not an action should be undertaken should not be left to the people, or to their representatives, but made by a small number of people who have the expertise, and the guts, to make them, usually in secret. Such secret decisions are necessary because only those who have full contact with the situation, and access to secrets, can be trusted to act properly on behalf of the people. This is a version of the anti-bureaucratic principle, that people in desk jobs don't know. It was on full display during the testimony of Oliver North before the Iran-Contra Committee (Cohen and Mitchell, Men of Zeal).

But managing the War At Home in the modern era is not an invocation itself. It has taken on the importance of a war itself. The scandal broken by the New York Times about the military analysts, and their relation to the Pentagon, had specific references to a psyops campaign. It is a well conceived, large, and broadly targeted campaign where the battlefront is the War At Home. If one feels like one is the target, if one feels like the American people are the enemy in this campaign, that is not really an accident. To the extent that the American people are capable of developing a reaction to the Global War on Terror that would cause it to come to an end other than that planned by its proponents, those Americans are the target and the enemy.

What are the tactics? There is a corps of military analysts who make sure the story that comes out from the press is compatible with the strategic and tactical goals of the war. Simultaneously, the embedding program has worked to make sure the message coming out from the real war is the message that would be most beneficial to the proponents. If that cannot be done, then it is the job of the analysts to lessen the impact and to challenge all points of view until the correct interpretation of the news becomes the norm. At the strategic level, members of the administration will fan out to the Sunday morning talk shows to present the message, and the talking points will be disseminated, and experts from think tanks supportive of the effort will be booked onto shows to present the proper point of view. When things don't work this well, there are the occasional firings, as with Gina Gray at Arlington National Cemetery recently in the news. The tactics do the following: Build support for the war, if the war goes badly, narrow the context of the part which is going badly. The religious civil war becomes criminal gunmen from militias and an outlaw group, al Qaeda. During the narrowing, work to prevent the information from flowing, reduce the profile of the war in the news. Remove the subjects from the portrayal that lead to changes in public perception -- coffins of soldiers returning home, burials. The public should be comfortable with what is happening, if that can be achieved, it should drop from their radar, they should be ignorant. This is not incompatible with a government which derives its mandate from the consent of the governed because of the anti-bureaucratic principle that only those on the ground should make such choices, the rest don't understand.

So now it's time for the bulleted list of invocations, principles and tactics:

ticking bomb invocation
collegiality invocation
complexity invocation
expertise principle
analysis hurdle
anti-bureaucratic principle
social framing
War At Home
psyops campaign

Why is the torture debate going the way it is going? Begin at the bottom of the list. There are serious stakes for the administration and those who carried out, and are carrying out, the system of torture and abuse. These are major war crimes, and in the case of those creating, through plan and policy, the system, crimes against humanity. The perception that crimes were committed must not be allowed to stand. The war against the public finding out how bad the abuse was, the war to keep reports like the Physicians for Human Rights reports to a small audience, must be won. The campaign against the wrong public opinion is every bit as important to the Global War on Terror as was the torture regime itself. The tools are similar to the campaign on the Iraq War: focus the discussion on a very small part of the real detainee interrogation program, and a single tactic -- the high value detainees and waterboarding. When necessary, make the tactical move of appearing to come clean -- admit to a few waterboardings, but point out that this occurred in the context of the immediate aftermath of 9/11, when things were different. We were chasing a ticking bomb. Use the anti-bureaucratic frame, push the idea that experts did this, and they had no choice, and people not in that situation don't understand. Trust the analysis hurdle. The members of the media would have to go through extensive work to piece the picture together in anywhere near the detail necessary to understand your moves. Rely on the social framing: those saying the problem is much bigger or much worse than "enhanced interrogation" are saying something the public doesn't want to believe, and they are saying something that "none of the experts believed at the time".

Once the story is built this way, the psyops campaign has succeeded. The media can be relied on to invoke the expertise principle and pretend that we have seen this before, even though we really haven't. They can be expected to have, as their worst paradigms for comparison, Richard Nixon, and Joe McCarthy, even though Torquemada and Pol Pot might be more appropriate. Although occasionally someone will say it, almost never will any of these paradigms be reached or exceeded, which relegates the problem to the realm of the political.

At which point, the collegial principle will take over. No one wants this to turn into a criminal matter, because everyone believes that if a political matter turns criminal, we are headed down a slippery slope. The fact that it was a criminal matter to begin with, and that there is no slippery slope that really one can go down from torture, except possibly mass atrocity and genocide, gets lost for now. Time, for scandals, is like Carl Sandburg's Grass. And so we have predictions in the press that nothing will eventually come of the torture policy scandal. But it isn't a scandal, its a crime. But the truth seeps out from crimes and does not go away. But there are those, international prosecutors, investigators who refuse to quit, lawyers representing those tortured, who won't let the grass grow here. Specifically for those in Congress, for whom this isn't a scandal but an obligation, the belief that it is a political matter about which one should be collegial is currently strong. A wake up call is needed.

Notice: As soon as possible, we will be posting a letter that we wish to send to the Prosecutor at the International Criminal Court. We will be asking for an investigation, under Article 15 of the Rome Statute, which allows the Prosecutor to investigate at his discretion. We would like to add signatures to this letter,and will put up some method by which people can add their names. Alternatively, you may email the authors of this blog and ask to be added to the list.

Inspiring Torture

2008-07-02T21:44:00.000-07:00

Today, people were shocked by the news. In the New York Times, Scott Shane had an article on the front page, China Inspired Interrogations at Guantanamo. I got a lot of questions about it, which surprised me. It surprised me because last week (and this) I have been wearing an orange ribbon around every where I go. I started last Monday. On Friday, the day after the International Day Against Torture, someone finally asked me what it was and why I was wearing it.

The person was, to be fair, looking for small talk (trying to distract me during a medical procedure). When I told her it was for the International Day Against Torture, and that it commemorated the entry into force of the U.N. Convention Against Torture, I got asked if this was a convention I had attended, and did I get the ribbon there? Sometimes, when you watch a lot of hearings, whose pace really is quickening, and see a lot of activity with human rights groups releasing their reports, and see at least a blurb in the paper about one or two of the reports, a feeling builds that its got momentum, and the tide is turning. And then someone who is in their early twenties, and is trying hard to do good for people, knows nothing about either the current situation with respect to torture, or the long history of the world trying to end it. It could be worse. A businessman told me that torture just wasn't on his radar. Umm, if you wait long enough, if America keeps to this path, it certainly will be.

But the article about the techniques coming from China struck some kind of nerve. It's hard to say why. There have been many articles that described the SERE techniques as having evolved from concerns about the brainwashing of POWs during the Korean War. Here's one from Daily Kos last year about the CIA that mentions where they came from. The two psychologists mentioned, James Mitchell and Bruce Jessen were also featured in this article on teaching SERE techniques at Guantanamo at Salon. This article, also by Mark Benjamin, specifically mentions the KUBARK manual, in the context of sensory deprivation, written in 1963 to summarize what had been learned by researching the Chinese tactics. And even the movie Conspiracy Theory (1997) mentions MKULTRA, another derivative of the study of the techniques that underlay brainwashing. That's if you don't want to talk about The Manchurian Candidate, which came out in 1962, and was based on tactics used on American POWs in the Korean War. Perhaps nobody realized that the Chinese were our adversaries in that war. That would be really sad, a bad day indeed for all the history teachers in the country. More likely, nobody read all those other articles? Or was the surprise over the never before in mainstream media print revelation that those tactics had never been designed to get intelligence, only confessions, and were used for false confessions by the Chinese? Since it is, as far as I can tell, really true that this little fact has never been in mainstream print before, let's hope this was the cause of the surprise.

Some of the outrage was caused by this "proof" that torture produces false data. Believe it or not, technically that is not true. The truth of a coerced confession depends on the truth of the statement itself, which is not a decision made by the prisoner who is confessing under torture. The statement is given to the prisoner by those forcing it, and the prisoner confesses it. So it may be true or false, and its veracity has nothing to do with the brutality of the method. Confessions simply are not a form of information collection. They are a form of propaganda, when the confession is broadcast, as it was during the Korean War, they are a form of intimidation, when people see how broken the prisoner is, or when the prisoner realizes that there is nothing they can do to stop themselves from giving in. But they are not a form of information extraction. Consequently, they don't stop ticking bombs, they don't keep troops from encountering IEDs or running into sniper fire, they don't provide intelligence at all.

Torture has a long history as a form of confession. In fact, that was its purpose in Roman times, and that was its purpose when used by the Inquisitors of the church. It was its purpose during the Cold War, along with the propaganda purpose mentioned above. There are certainly fears that it will be more. The fear that drove the research in the 1950's was twofold: That these techniques would be used to cause captured soldiers to give up sensitive information, and that they could be somehow brainwashed, have their psyches rewritten with secret instructions to cause harm after their release at a later date. Experiments and programs were conducted on both fronts: SERE was the result of efforts focusing on inuring soldiers to giving up sensitive information, and the sensory deprivation and MKULTRA programs were concentrated on seeing whether psyches could be rewritten. In the latter case, they learned that the old psyche could be forced to come apart, but had trouble actually writing a new one. Countless (because we still don't know who they all were) experimental subject disasters later, the latter project was given up, but the methods became part of the documents, like KUBARK, and they became part of the methodology drawn on by both the CIA and the U.S. military in their recent excursions into torture and cruel, inhuman and degrading treatment. Mitchell and Jessen also had numerous other studies at their disposal, like the Milgram experiments and the Stanford Prison Experiment.

It could be argued that SERE is where the belief in the existence of an interrogation method including torture as its basis survives. The Chinese, and from descriptions the Vietnamese during the Vietnam War as well, seem to have used the methods as confession methods, not to save their prisoners souls, but to put them on display for propaganda purposes. It has always been the West that seems to have believed more in the value of torture for extracting information. It is in our movies, long before the series '24', but certainly perfected in that series. The concept of torturing information out of prisoners is even in comedy skits ("Sign zee papers, old man..."). But confession is what it most usually produces, and confessions are what American interrogators chiefly have got out of it.

That being the case, there is little reason for it, besides intimidation, propaganda, and revenge.

The Past and the Future

2008-06-25T18:34:00.000-07:00

The origins of our current system of treatment for those in military and other detention are bound up in the desires of the players in the current administration. But we could have seen a lot coming before it happened. And we can glean something from the protections they built for themselves, if only in that no one builds so many protections without a prior motive of using them.

The origins of the future system are in place. Our future system of treatment of those in military and other detention is written in the framing of the issues, and that is bound up in the portrayal by the press. We can likewise glean something about the future of U.S. torture by looking at the accepted wisdom, accepted even by those who claim to disagree.

An Interesting List

At a panel a few weeks ago at Stanford University, Anant Raut, Barbara Olshansky, and Mark Falkoff took questions from the audience on an array of subjects related to prisons and prisoners. Ostensibly, the focus was Guantanamo. However, there were other prisons to report on. A whole network of them. And the list of countries they appear in led me to think about why that list, what determined the choices. There is a large network of prisons in Afghanistan. There is a large network of prisons in Iraq. But the other two countries mentioned, and the list was not given as exhaustive, were Morocco and Somalia.

My immediate thought was failed states. In countries in which the central government is weak, it is possible to run any kind of lawless operation one desires. Indeed, the American military operates with impunity in Afghanistan and Iraq, and to some degree in Northwestern Pakistan. Should Pakistan also be on the list, then? There was a prison operated at Kohat in 2001-2002, there. Indications are that the people in charge were the CIA, not the American military. But it is a fair question. Then why Morocco?

Perhaps the prisons are run near perceived threats? At least to the Administration, there was or is a perceived al-Qaeda threat in each of the four countries, and operations out of Morocco have been cited, connections to the Madrid train bombings, principally. But if that were true, then why Morocco and Somalia, rather than Bosnia, a country where our troops already operate, and where at least one of the detainees listed in the Human Rights Watch report on solitary confinement at Guantanamo hales from?

Here's a list that should accomodate all the choices of countries for the U.S. to create prisons for mistreating those it accuses of terrorism:

Afghanistan.....Morocco
Azerbaijan ..... Myanmar
Eritrea ...........Pakistan
India .............Philippines
Indonesia ...... Somalia
Iran ..............Sri Lanka
Iraq ..............Thailand
Israel ............ Turkey
Malaysia

and of course, the United States of America -- at Guantanamo maybe?

Most of these countries have an insurgency of some type going in them, even if small. Many of them have large or segregated Muslim populations. Please, what is the clue? What is the list on which Morocco, Somalia, Iraq and Afghanistan show up?

The above list is the list, minus some small countries and island nations, of those countries which have not ratified the 1977 First Additional Protocol to the Geneva Conventions. That's the protocol that requires that the treatment of captured combatants, whether they are entitled to prisoner of war status or not, follow the entire Third Geneva Convention. If you look up this protocol on, say, Wikipedia, you'll see that it is controversial. Actually, it was intended to close any gaps in the basic dignity of human beings. The only controversy is whether or not a person must earn the right to be treated humanely, earn the right to be treated as human, or not.

It is often remarked that certain features of the current administration's actions have roots in the past. For instance, it is widely written about that Vice President Cheney's desires to expand the powers of the executive branch have their roots in his beliefs formed as Gerald Ford's Chief of Staff, when the Church Committee was putting together regulations to rein in the "imperial presidency" after Richard Nixon and J. Edgar Hoover. His feelings on this subject were well known: He authored most of the minority report of the Iran-Contra committee in which he wrote down his distaste for measures he felt tied the President's hands. Another person related to the committee who would later feature prominently in the views of the current administration was David Addington, who was later Cheney's counsel, and now Chief of Staff, and figures in both the expansion of presidential power and in the current mess over treatment of prisoners and torture.

The Iran-Contra committee was operating and writing around the same time that the subject of ratification of the First Additional Protocol came up. It was not difficult to persuade a president who had endured the Beirut Marine Baracks bombing that terrorists deserved less rights than ordinary human beings, and Douglas Feith was determined that the Palestinian Liberation Organization, which, to be fair, really did hope to legitimize itself by signing the Geneva Conventions, and which was on the list of terrorist organizations, should get less rights as prisoners (Indeed, if you look at the list of nations that have ratified the protocol, Palestine shows up in parentheses because it applied for such recognition, but was turned down because its status as a nation state was controversial) So began a gap in the Geneva Conventions where none had been before.

If you watch old World War II movies on TV, one of the things you might notice is the difference in treatment between the American and British prisoners of war and the Russians. At the time, Germany honored the prisoner of war status of those nations who, like Germany, had signed the 1929 Geneva Protocols, and the Soviet Union had not. So their prisoners got a lower status. And that was the original distinction in 1949: Soldiers from countries which had signed got the full prisoner of war status, soldiers from non signing states got the protections of Article 3. People who did not follow the rules of war with respect to wearing uniforms got more limited protections under the Fourth Geneva Convention which governs the treatment of civilians.

When it became apparent that the language of the Conventions was going to be used to deny prisoners or civilians humane treatment, due to the fact that it did not include a full range of belligerent behavior, the work of preventing that from happening became eventually the 1977 First and Second Additional Protocols. But Douglas Feith, and many others, who believed that humane treatment should be a reward for compliance with the treaty, worked tirelessly against the ratification of the additional protocols. To this day, the United States has signed neither of them. The U.S. has also opted out of subsequent treaties, either because of concerns about "sovereignty" or more probably, because they might imply the fundamental rights that some felt should be earned.

And what does it say, that the U.S. would put its prisons where these protocols are not ratified? It says, quite simply, the same thing that the U.S. was arguing about Guantanamo in the Boumediene v. Bush decision that was just handed down. The prisons are located where the Administration believes them to be beyond the reach of this particular international humanitarian law. The were deliberately located where "harsh treatment" would imply less legal risk to those who planned it. All of which pretty much says one thing: That Antonio Taguba is right. The administration deliberately set up to systematically torture and practice cruel treatment. Its legal opinions, from those written by Yoo and Bybee to later ones written by Goldsmith, Levin, and others, have all been about protecting a regime from prosecution under international law for war crimes or worse.

The past yields a clear trail from the 1980's to the present in the domain of mistreatment of prisoners, of deliberately clearing the way legally for the dehumanization of populations that could be labeled terrorist. And it is clear now, in the vocabulary of those who argue in favor of the treatment at Guantanamo, and in Afghanistan. They complain bitterly that terrorist prisoners should not get the same rights as soldiers, that foreign prisoners should not get the rights as citizens. In essence, that sub-humans should not get the same treatment as human beings.

The Frame of the Man Too Evil for Rights

Looking to the future, the tea leaves were written in an expose that graced the front page of the New York Times on Sunday the 22nd. Scott Shane wrote Inside a 9/11 Mastermind's Interrogation, having interviewed Deuce Martinez, one of the interrogators of Khalid Sheikh Mohammad at a CIA Black Site in Poland. From start to finish, it is a blow to all those who would see torture disappear from the earth. Here another type of person undeserving of any human rights is encountered: Someone who has committed a heinous crime.

A listen to Senator Christopher Dodd's impassioned speech on the Senate Floor Tuesday night in opposition to the FISA amendments should give a clue to what is wrong with Mr. Shane's article. After reminding us of just how many deaths, how many horrible deaths the men in the docket at Nuremburg were responsible for, "45 million dead, 10 million burned," he invokes the memory of his father, who was the number two man to Justice Robert Jackson:

My father, Senator Tom Dodd, was the number two American prosecutor at the famous Nuremberg trials. And I have never, never forgotten the example he set.

As Justice Robert Jackson said in his opening statement at Nuremberg: “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

Mr. President, what is the tribute that Power owes to Reason?

That America stands for a transcendent idea.

The idea that laws should rule, not men.

The idea that the Constitution does not get suspended for vengeance.

The idea that this nation should never tailor its eternal principles to the conflict of the moment, because if we did, we would be walking in the footsteps of the enemies we despised.

True humanity, true adherence to the rule of law, real justice, does not base the rules of the game on what we think of the accused. But that mentality has overtaken the United States in many ways, both a growing movement before September 11, to be seen in the number of incarcerations, the demand for mandatory sentencing, trying children as adults, the whole campaign against furlows conducted by George H.W. Bush in 1988, and after September 11, with the demands that prisoners taken in the "Global War on Terror" should not be given the basic rights guaranteed by our laws and Constitution, nor by the international laws to which we are party. We have, to paraphrase Senator Dodd, suspended the inalienable rights of man for vengeance.

This suspension has been effected in the framing of the press. Indeed, with the exception of the audience of the media outlets and print media, there is no one who truly believes this kind of logic. Humanitarian organizations and human rights watchdogs, like the International Committee of the Red Cross, Amnesty International, Center for Constitutional Rights, Human Rights Watch, or Physicians for Human Rights, have never believed it. They've been out to stop the suspension of human dignity in time of war for a hundred and fifty years. Our forefathers never believed it, General Washington ordered humane treatment for all prisoners, and Abraham Lincoln had the Lieber Code. And the above discussion of the drive to keep us out of the First Additional Protocol, the Yoo memos, the Golden Shield Memo by Jay Bybee, the President's directives denying Geneva Convention protections to "unlawful combatants" from the Taliban or al Qaeda, the move to put prisoners in some legal black hole, what does it mean? It means that these people had to create a legal framework for the notion that protection of human dignity could be suspended. They didn't believe it existed in the United States, either.

That leaves the press. The framing in Mr. Shane's article is eye popping. In it, the interrogator Deuce Martinez is portrayed as the "good cop" to the bad cops, "knuckledraggers" who practiced torture, deprivation techniques and stress positions. The interrogation effort is portrayed as an enormous success, with,

The intelligence riches ultimately gleaned from Mr. Mohammed were reflected in the report of the national 9/11 commission, whose footnotes credit his interrogations 60 times for facts about Al Qaeda and its plotting — while also occasionally noting assertions by him that were “not credible.”

Those managing the interrogation worry that as the number of waterboardings climbs from 60 to 100, they are coming close to crossing the line into torture. Arguments are provided, by the CIA naturally, that the confessions that seemed ludicrous when we first heard them are actually factual. And all the way through, the atmosphere of the article is that such treatment is justified by the need to prevent another attack and, most of all, because Khalid Sheikh Mohammad masterminded the September 11th attacks, which killed 3,000 innocent Americans.

No where in the article is the legality of what these people were doing discussed. It seems assumed, because the prisoner was Khalid Sheikh Mohammad. In fact, under our obligations under the Convention Against Torture, none of the information derived from this interrogation can be used in any proceeding whatsoever. Deuce Martinez is guilty of torture, since his interrogation rests on it, even though he plays the good cop. The psychologists he now works for, Mitchell and Jessen, are at the heart of a fierce controversy within the American Psychological Association over forbidding its members from participating in such interrogations, and they are under investigation by congressional committees for having designed parts of the illegal interrogation regime that originated at Guantanamo.

This is the frame which will perpetuate torture by the United States, in contravention of its principles, in suspension of its laws. The very heart of why we torture is because we have discovered a crisis so desperate, and prisoners so evil, that they supercede any prohibition, even one which prohibits torture regardless of the emergency, and regardless of who the torture victim is or what they have done. It is believed, at some level by the American Press. Defending the human rights of Khalid Sheikh Mohammad is not a way to sell news, and it is not perceived as a way to write news articles.

Someday, if the United States pulls itself back on track, it will look back at this behavior, and not fondly. Senator Dodd mentioned that in his speech, with regards to the provisions in the FISA bill, but he could just as well have said so about the inhumane treatment and torture at U.S. military and CIA prisons around the world. He talked at length about the latter, because he was trying to speak about a pattern of lawlessness. But the Shane article shows a much deeper problem.

Below the pattern of lawlessness is a perception, a very ugly cognitive frame, conceived in vengeance, and dedicated to the proposition that all men are not equal and that there is no treatment too ghastly for some of them.

There's Something Worse Than Banal

2008-06-21T11:43:00.000-07:00

It's been a big week. Senate Committee hearings, Human Rights Watch published a report on solitary confinement at Guantanamo. McClatchy News published a five-part series on multiple aspects of the life as prisoners in the U.S. military prisons. A report was issued by the Physicians for Human Rights detailing data from examinations of former detainees done under the Istanbul Protocol. Next week is the International Day Against Torture. It seems like the heat is finally on the U.S. to do something, like the Congress is finally beginning the investigations it needs to do to end this sorry chapter in U.S. history.

Wouldn't that be nice?

A Picture Does What Words Cannot

It was a lot to absorb, and to watch, and to worry about for a week. Retired Military Patriot recommended The Bill Moyers Journal, on which he interviewed Douglas Blackmon, the Atlanta Bureau Chief for the Wall Street Journal about his book Slavery By Another Name, documenting the use of detention and work camps from the late 1800's to around World War II, as a source of forced labor, an effective re-enslavement of blacks in the United States. Pictures of cruelty in the work camps, and the statement by Blackmon that the pictures exist because the wardens had no problem with journalists and photographers coming and going as they pleased, since they didn't think there was anything wrong with selling forced labor to manufacturers.

And you start to wonder: It is said by many that the reason the Civil Rights Movement occurred the way it did was that the brand new medium of TV allowed people living in parts of the country that had never seen a black person, for whom the Civil War and slavery were something only studied in text books in high school, to see what was being done in America to people, and those people, whose vision of America was of a country much better than that, began to say what was happening was wrong. Today, people see everything. The medium of the internet, if it can reasonably be called a medium and not a bundle of media, allows a person to learn things far outside their specialized training, about places far away from their daily life, about people they will never meet but can come to feel they know. Where formerly only stars had a permanent persona that could be called up and examined, now average people leave permanent marks, and can be seen by anyone and everyone.

And this began to worry me. This is not the 1960's, and there is not a great motherlode of people somewhere out there who have no access to what is happening, on whom to dawn a growing feeling that our society is doing something wrong. There is no one out there who will suddenly feel a great revulsion and demand that their government stop what it is doing in their name, because it is all out there, all accessible to the 150 million people in this country with access to the internet, and yet it continues to happen.

But Thousands of Words Create A Picture

But that is not true. The Senate hearings were many hours long. The McClatchy series is 5 days at one article per day, about 20 minutes per day to read. The Human Rights Watch report is 57 pages. The PHR report is 125 pages, and is densely written. One section of the PHR report and all of the HRW report are written legal style, with copious footnotes taking up a third of a page in some cases, in fine print. If one was not familiar with the process involved in either, they might take forever to read. And there are very few pictures of what is happening. HRW provides pictures of the cells, and of the recreation space at Guantanamo, the rest is up to the imagination at best.

Anyone who didn't read Dana Priest and Amy Goldstein's four part series on Careless Detention can be forgiven when they get to page 64-66 of the PHR report, and don't recognize the use of Haldol as a restraint, don't take it back to the immigrant detention complaints (they administered it on the plane rides as they were deporting people), and can't remember that it's been ruled illegal as a drug to be used on a prisoner in the United States, unless specifically beneficial to the prisoner's psychological condition, because it has so many incapacitating side effects. The prisoner in question, "Rasheed", was given neuroleptics with frequent and major side effects after he became agitated because he was going insane from too much isolation (p.67). But with no picture, no Rasheed on the TV screen, will anyone know about it? How many people will be reading the PHR report in its entirety? The major news outlets read the executive summary, and the preface by retired Maj. Gen. Antonio Taguba. For a day, or so, at least people were treated to the headline that general Taguba had accused the administration of systematic torture and war crimes. The Pentagon dismissed the report as being about events long ago, based on much later data.

And so the public forms an opinion. Shall we go with people who say our country has committed major international crimes, or with those who say they've visited Guantanamo, and the prisoners are living like they are in a hotel, gee the food is good! If you were juggling a million things in your daily life, and along come two opposing views, and one fits your view of yourself and your country, and the other is damnably black and dark, which will you choose?

Human Rights Watch, in their report, also mention that the food is good:

The US government points to the fact that detainees are housed in cells that contain an arrow pointing to Mecca and provided regular, high-calorie meals that all meet the halal dietary requirements as evidence that the detainees are treated with sensitivity and care. It also claims that they pray under the guidance of a detainee chosen to lead prayers.

But while these measures are positive accommodations to detainees’ needs, they cannot themselves equate to “humane” treatment in view of the isolation imposed. The reality is that these men live in extreme social isolation, with little outside stimuli, and little to do all day but stare at the walls. (p.18)

So maybe the message can't get out, and it can't get out because it is a lot to absorb, it is very frightening, and it does not fit with the image we have of ourselves, or the image we have been taught about terrorists. And where one picture of a black man, shackled to a pick handle, in Bill Moyers' presentation strikes deep into our sense of injustice, one can see it in an instant. In that one instant, all the revulsion at the practices of slavery, forced labor, racism, and subjugation of black Americans comes up, a coherent frame, as George Lakoff would call it, that adds this new information to a long list of obvious wrongs.

Forming a Frame

Would that that might happen when someone mentioned a torture technique. I suppose it may be that I've been writing on this blog for a while, but the words "stress position" float up in my mind when I see that picture too. They don't for most people, most people don't know what the famous Rumsfeld/Haynes memo was talking about, stress position. When Senator McCaskill belabored the lack of constraints in that memo on removal of clothing, after Jim Haynes asserted, rather ridiculously, that that did not imply nudity. Nudity bothers us Americans. Stress positions? Hey, I stand for 9-10 hours a day at my desk. But they should conjure up a distinct revulsion. Remember strappado and squassation? I wrote about them once before. In not one, but two accounts of the treatment of individual detainees interviewed by PHR doctors and psychologists, they show up:

He stated, “After that they hanged me. There was some kind of machine — a winch — that pulled me up after each question…and because of this torture, I lost consciousness two times… and when I [lost consciousness] they pour[ed] cold water on me and [went] on questioning me.” He noted that his shoulder was dislocated as a result of being suspended. He also reported losing feeling in his arms while being suspended, and the numbness persisted for approximately three months afterward. (p. 21, "Hafez")

[O]ne time they took me to be questioned and there was a chain coming from the ceiling. It was a winch. They pulled me [by my wrists, from behind] and they left me for about four hours. Only my toes were touching [the floor]. I started saying to them, “It is very painful — I have a very severe headache,” and after that I passed out. (p. 18, "Kamal")

In both cases, medical examination found that nerve injury had occurred, and in one case problems with range of motion of the shoulder, consistent with the use of this technique, a favorite of the Inquisition. A third detainee was suspended, it isn't clear from his statement that it was necessarily this method, but he did pass out from the pain. Keep in mind that leaving the toes on the ground is also a well studied torture technique: It's used to slow the inevitable dislocation of the shoulders. Stress positions. Oh, and in the case of Hafez, a "doctor" attempted to reduce the dislocation, and then, once satisfied that the shoulder had been put back in place, told the interrogators to "continue" (p.21).

Does a frame start to develop? This is medieval, screams and crunches torture. Does it sound wrong? Or does the fact that the person may have been a terrorist mean it's okay? All of the people in the PHR study were released. They were interviewed after they had been let go. None of them had been told what they had been detained for, few of them had actually been interrogated in any meaningful way. These are not accounts of people who knew where the ticking bomb in Los Angeles was. They are accounts of people who were swept from their homes in the middle of the night. In some cases, it seems dubious to call them enemy combatants at all, since they don't appear to have ever fought, they weren't in a military, and they were arrested in their pajamas. That would make the Iraqis in question civilians. And that would make them eligible to the full protection of the Fourth Geneva Convention, no playing any games and reducing it to common Article 3. The Convention Against Torture applies regardless of whether or not there is a war going on, although the administration is seriously trying to claim that it is superceded by the Geneva Conventions in that case, an argument the rest of the world finds ludicrous.

The Human Rights Watch study is of inmates at Guantanamo. Many of those are also slated for release. In the case of the Uighurs, they also don't know why they were detained. They are being held in solitary confinement. The military says it isn't solitary confinement because they can shout to each other when their meal slots are open. But the confinement is more isolating than any supermax prison in the U.S. (p.20-21), and it is hard to see how some of the cases can be realistically claimed to not be solitary confinement of the most extreme sort. Do these prisoners deserve it? Aren't they the worst of the worst?

I've had a pretty grotesque week. Wading through chapter 3 of the Physicians for Human Rights report is sickening. Story after story of people having their testicles stepped on, or a screwdriver punched through their cheek, or being beaten into unconsciousness, or sodomized with objects or guns, or being put on leashes or soaked with water and put in the cold, or being told their sisters and daughters were being raped. Those people were all released because they hadn't done anything. They can't live their lives, they visit their families rather than living with them because their PTSD is so profound that they're sure their families recoil from them.

Où sont les pals, les grils, les entonnoirs de cuir?

And then you get to the end of the Human Rights Watch report. More stories, this time of prisoners driven insane by solitary confinement. Of lawyers pleading that their clients are no longer sane enough to stand trial because they can't communicate anymore. These prisoners have names and histories (the PHR study protected the identities of the participants since they could be endangered). But still, the devil is in the details: A footnote on page 42 takes you to the report of the U.N. Committee Against Torture in 2006. If you follow it, you come to the conclusions of the committee relative to the United States. There you will find that the committee which has the same status with respect to the treaty that the ICRC has with respect to Geneva, believes that the U.S. violates the treaty in our prisons, some of our law enforcement, and our use of tasers, quite apart from our recent detention of "unlawful enemy combatants." Our supermax prisons are already listed as inhumane conditions of solitary confinement. As is our failure as a nation to stop prison rape. And our use of electric shocks as restraints.

And then the coup de grace to the arguments that we've heard since early 2002, on why we need to engage in torture and inhumane treatment. In a cell at Guantanamo Camp Echo and then at Camp 3, there is a Bosnian-Algerian prisoner named Sabar Lahmar (HRW report at p. 29). He was picked up in October 2001 in Bosnia because the U.S. said he was part of a bomb plot. Maybe he was. The Bosnian courts didn't think so, the Bosnian Supreme Court ordered him released for lack of evidence. Instead of being released he was handed over to the Americans, and wound up at Guantanamo. Been there since January 17, 2002, so about the entire time the facility has been open. Emily Bazelon wrote about him in Slate after the passage of the Detainee Treatment Act in 2006.

Only he isn't anymore as she described him.

Since 2006 Lahmar has been housed in extreme isolation, with virtually no human contact other than with the prison guards and occasional medical staff or interrogators. From June 2006 to November 2007 he was housed in an 8-by-6-feet cell in Camp Echo, with the only window in his cell painted black so that he would not be exposed to any natural light. His lawyers report that he was denied paper and pen, allowed no reading material other than the Koran, rarely allowed out of his cell, and given only a sheet to sleep with at night, which was taken away in the morning.

Sometime around November 2007 Lahmar was moved to Camp 3, where he continues to be housed 22 hours a day in a single cell, with nothing to occupy his time other than his Koran. He cannot speak to other detainees over the noise of machines that many detainees believe is designed to prevent them from communicating with each other. Even his recreation time is totally solitary. (HRW, p. 31)

The report states that a year ago -- a year ago -- his lawyers wrote to the Justice Department seeking relief for his state. He was losing, perhaps now permanently, the use of his legs from atrophy and nerve damage consistent with his lack of movement and never got the therapy a doctor had prescribed for it (p.48-49). His mind is also going, he lies in his cell and stares at the wall. He seems beyond reach of his lawyers, he refused to leave the cell to meet with them, due to his deteriorating mental condition, a condition caused by his solitary confinement. Part of what is exacerbating his condition is that when solitary confinement is arbitrary and without purpose it causes profound psychopathology.

If you need a strut for that frame in your head, if you need a reason to doubt that it is all in the name of national security, if you need a reason to complain as an American, on June 26th about what is done in your name, if you never follow another link from this blog site, go to the report, and read the appendix (pp. 47-54), the letter the lawyers wrote, on behalf of Mr. Lahmar, and have waited over a year for a reply. He was put in solitary because someone misread an instruction from a general, who wanted him put in better conditions as a reward for his behavior. And he is still there. Is this clear enough to suffice, since we don't have a picture? Does it shock the American conscience yet?

Tout cela, je devais le dire pour les Français qui voudront bien me lire. Il faut qu'ils sachent que les Algériens ne confondent pas leurs tortionnaires avec le grand peuple de France, auprès duquel ils ont tant appris et dont l'amitié leur est si chère.

Il faut qu'ils sachent pourtant ce qui se fait ici EN LEUR NOM.

Henri Alleg, La Question, November 1957.

Interrogating the Interrogators

2008-06-17T22:57:00.000-07:00

Today, the Senate Armed Services Committee performed an interrogation. First there were two panels of witnesses, including Lt. Col. Diane Beaver, the woman whose legal brief ended up being the sole legal advise attached to the list of interrogation techniques written by William J. Haynes II, and signed by Secretary of Defense Donald Rumsfeld in late 2002. Including Lt. Col Daniel Baumgartner and Dr. Jerald Ogrisseg, from the SERE program, who testified repeatedly that the program was never intended to train people to interrogate enemy prisoners.

Evidence has mounted that the idea of using SERE this way originated in the Pentagon, not down at Guantanamo at one of Diane Beaver's brainstorming sessions. We didn't hear about the show '24' today, but that was another source for those sessions, as it also informs at least one of the august justices at the Supreme Court, the very one who wrote a dissenting opinion to last week's habeas corpus ruling, Boumediene v. Bush, warning of death at the hands of "radical Islamists" (p. 111).

The Senate Hearings

The testimony changed to interrogation when Jim Haynes was empaneled. People really were expecting to hear this person, whom Philippe Sands believes was at the nexus of the torture team that created the regimes of torture that were used first on Mohammed al Qahtani, a.k.a. detainee 063, later on others at Guantanamo, and spread to Afghanistan and Iraq, surfacing for the American public in the nightmarish photographs from Abu Ghraib (Philippe Sands, The Torture Team).

There were expectations of fireworks on FireDogLake, where they live blogged the event. I cleared my schedule, rearranging to do things from my desk, where I could watch on CSPAN-3 while I worked. After all, the man had agreed to testify, voluntarily. During the earlier sessions a lot of blanks got filled. SERE is not just a testosterone laced nightmare training regimen, like we see in the movies, it includes all forms of interrogation, even those more to the liking of the FBI, and Dr. Ogrisseg testified that, at least in the program he was both a constructor of, and a program evaluator for, backed up by journal articles and logs of findings, they don't do waterboarding. The reason is just as chilling as the technique itself: The point of their program is to build up defenses against interrogation, for the purposes of helping captured troops to defend their dignity, their honor, and their sanity. Waterboarding breaks a person, and even afterward, the person to whom it is done retains an inordinate fear of the waterboarding devices. Consequently, since breaking peoples' personalities is inconsistent with building them up, the technique is not used in his training. Likewise, the sleep deprivation (extreme closed confinement was not discussed by Dr. Ogrisseg) is not extreme, they aren't trying to hurt people, just train them.

Chilling, for what it says about the real techniques, so expertly reverse-engineered, that their real application is too injurious to use for training.

Chilling that with the very real inhumane and torturous treatment that went on in al Qahtani's case, at Guantanamo, that one of the people who helped construct that program, Diane Beaver, should let slip her outrage at Captain Carolyn Wood, who she regards as a really malevolent person who creates real torture: Under her watch at Bagram, people were beaten to death, and then she worked up the techniques used at Abu Ghraib.

Mr. Haynes Knits His Brow in Vain

But the star of the show, the man who was going to tell everyone just how the techniques studied for the SERE program ended up being used for interrogations, his testimony consisted of admitting the obvious whenever a Senator angrily stated that they had the letters from [name your source, chiefly the military JAGs] to prove it, but otherwise repeatedly failed to recall meeting after meeting after memo after trip after phone call, in a manner that would have made former Attorney General Alberto Gonzales very proud. When someone made the mistake of asking him what he did recall, the Washington Post got their take home quote of the day: "What I remember about the summer of 2002 was a government-wide concern about the possibility of another terrorist attack as the anniversary of September 11." To be fair, they, like much of the press, found more that was newsworthy by poring over the documents the committee released than listening to Mr. Haynes' much promised fireworks.

But if you are looking for the mindset that led to the judgements that Senator Lindsey Graham so aptly characterized, "The guidance that was provided during this period of time, I think, will go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our nation's military and intelligence communities," if you really want to know how such a thing happened, then perhaps questioning Mr. Haynes on what everyone pretty much already knows, and knows he won't disclose, isn't the right place to look.

That mindset has been building for a long time. You could hear it when the House Judiciary Committee Republicans questioned David Rivkin, and chuckled over the idea that anyone would believe that rapport building would be effective against the unhuman al Qaeda operatives. You could hear it when Senator Inhofe was doubting whether a man who was a twentieth hijacker would respond without more incentives, citing a list of all the reasons for haste in getting information in December 2002. You could hear it in the comment of Senator Jeff Sessions. Mr. Sessions ridiculed the notion that the techniques to which Mohammed al Qahtani was subjected were in any way harsh. He singled out one for disdain. In a comment reminiscent of Donald Rumsfeld's priceless footnote to Jim Haynes list of tactics, Mr. Rumsfeld famously complained that 4 hours of standing was too short, after all he stood for 9 or 10 hours a day at his desk. Today, Jeff Sessions remarked that 30 days of solitary confinement wasn't much, after all, we confine people in federal custody for longer than that.

The Knowing Chuckle Frame

Does anyone notice these little comments, does anyone pay attention to the frame that they build? The ridicule of thirty days is a ridicule of Articles 89 and 90 of the Third Geneva Convention, perhaps Mr. Sessions believes it's, um, quaint. The standing, is double the limit in Article 89, which limits "Fatigue duties" to two hours. If thirty days is light, given U.S. prison conditions, and it is for some U.S. federal penitentiaries, then the criticism is on the penitentiaries, not on the Geneva Conventions. Humanitarian law is based on the essential dignity of man, what Alberto Mora today termed inalienable rights, rights that should accrue to every member of the species. The Supreme Court opinion finds the basis for the rock bottom fundamental nature of habeas corpus in the works of that guy Alexander Hamilton in the Federalist Papers, those documents in which the Federalist Society and Samuel J. Alito, Jr. find tea leaves supporting signing statements, unitary executives, and unbridled power.

The building of the frame of scoffing at international agreements on human dignity, the frame in which people need to earn the right to be treated as human beings, the frame in which inalienable rights are confined to the prepared statements of quiet heroes, has been going on for a long time. It is a swirling mess: Ancient enmities from around the globe, generation long disputes over small territories in the Middle East, child soldiers, slaves, and genocide ignored in Africa, hardening over starvation in Somalia, suicide bombing out of a bitter Hindu-Buddhist war in South Asia, all descending on minds and drying them to an unfeeling core that believes that they are the only sensible people left, and so the insanity they create is the only proper response to the great evil always outside the gates. One almost expected Jeff Sessions and Jim Haynes to lean back over their laugh and reach for a brew, and reminisce about the old days, when men were men and torture victims could be starved, put in the hole, and beaten for a lot more than a mere 30 days without doing a wimpy thing like going insane or dying. I'm reading La Question, by Henri Alleg, I'll let you know about the good ol' days when I finish.

If America truly wants to become something it has ceased to be, it will need to heed the statements of genuine humanitarians like Alberto Mora, and remember that it once thought human beings were endowed with inalienable rights, and that We the People do not believe in cruelty, and that we'd rather dissolve the ties which bind men into nations than see people imprisoned without habeas corpus. In this country, such humanitarianism is obligatio erga omnes, lest that 'new nation' perish from the earth.

Notice: There is a new panel on the sidebar, for June 26th. As we discover them, we will add events people have planned to help end torture this month. They can be sent to any of us, if you have them. Feel free to use the graphic if it helps with your efforts. Get some orange ribbons, or find a local lecture. Or set one up: I've been surprised how much people who do the work on this issue appreciate the opportunity to talk to any crowd you can assemble.

Practical Compassion

2008-06-11T21:43:00.000-07:00

It's been a busy week again. The National Religious Campaign Against Torture has launched its Torture Awareness Month, and they have churches across the U.S. displaying banners against torture. If you live in any sizable population area, there is a good chance there are churches near you that are participating (we have 4 in the area around where I am). For details, lists of churches and how you can participate, please go to their website.

The U.S. Senate Judiciary Committee held hearings on interrogation methods, centered on the report from Glenn Fine about the FBI relation to them. In testimony, John Cloonan, a former FBI interrogator, revealed that the FBI had obtained usable intelligence from Ibn al Sheikh al Libi by establishing rapport, before he was subjected to harsh methods by the CIA. In the case of al Libi, the harsh interrogation was done by the Egyptians, and the committee also heard testimony on the legal fig-leaves used to pretend that the U.S. did not know what type of interrogation al Libi would undergo if they handed him over. A synopsis of the hearings in three parts is here, here, and here, at Firedoglake. The prepared statements of all the witnesses are available here. Interestingly, the hearing was interrupted. Apparently Mitch McConnell tried to call numerous votes to keep the hearing from proceeding, a tactic which failed when Harry Reid moved to recess the Senate.

The testimony from Mr. Cloonan is very damning, and is largely corroborated by the report that Mr. Fine and Ms. Caproni were presenting. Ms. Caproni also testified that she was denied access to information about the interrogations -- she is Counsel to the FBI. One wonders whether an investigation into all details of the interrogation policies of the U.S. government is possible, given that the lead investigating branch of the Department of Justice can find itself disallowed from accessing information. It doesn't seem possible that the FBI could not have the proper security clearance to look at government documents.

What Mr. Cloonan paints is a picture in which rapport building has produced intelligence from even so called high-level targets, like al Libi, and probably would have from Khalid Sheikh Mohammad, had it been used, but in which the preferred course was abuse and torture, with the result that the information was never obtained. I have remarked before on this blog that the so-called intelligence that people have claimed to have got from prisoners during the "War on Terror" by torture has amounted to confessions on facts that were obtained through alternate means and forensics. What emerges is a picture in which there are tactics that work that are not used, and tactics that don't work that are used, chiefly because those making the decisions believe something about the various tactics that is 180 degrees opposite to the truth.

What emerges from George Lakoff (Don't Think of an Elephant!), and from Glenn Greenwald (Great American Hypocrites, and his blog on Salon), and others who have tried to analyze the emotional or metaphorical process behind such thinking, is that there is a belief that if one doesn't act tough, one can not defeat these terrorists. Torture is the ultimate in acting tough, rapport building is the ultimate in what George Lakoff calls the nurturant parent model. In order to maintain a belief system that the terrorists are evil without question, that model can not be allowed to succeed, and the model that advocates toughness, harsh tactics, and "a dunk in the water" must be shown to be expedient, even if the results are not forthcoming.

That would certainly explain the metatorture. When thousands of prisoners are kept in temporary pens exposed to the harsh elements in Afghanistan, the reason can not be because they all have useful information, and they are waiting in line in some interrogation backlog. If the motive is punishment, as it was in some instances at Abu Ghraib (according to Lt. Gen. Ricardo Sanchez), or the motive is to instill fear, as Gerald Gray claims about the abuse, on what to do with the prisoners can be that imprecise. The immediate objective is the mistreatment itself, all that is needed is to make sure it happens.

Be very careful about what is claimed here: The reason for the abusive treatment is to prove, either to themselves or to the rest of us, several things:

The abusive treatment works.
The people we are dealing with are so evil that it is the only language they understand.
The United States has a right to do so, either because of sovereignty or justice.
That those who do not believe in the treatment are dangerous.

Jack Cloonan's testimony and the FBI report address points 1, 2, and 4, with force. The abusive treatment doesn't work, not just because the information obtained under duress is unreliable. Such treatment can often cause the subject to stop talking. And he made note of the fact that all prior information on Khalid Sheikh Mohammad was that the man liked to brag, and was proud of what he did. To the interrogators at the FBI, that looks like a gold mine, just let him brag. Point 2, that those who do not believe in cruel or torturous treatment are dangerous because they are refusing to get the intelligence or permit someone to get the intelligence that will save the nation is frequently repeated, and we will probably hear it a lot during the election season, regardless of John McCain's expressed views on torture, as rumors and whispers fill the air. It rests on the premise that anyone who can't take the final step over the line to the dark side is unwilling or unable to do everything in their power to defeat America's enemies. When it is being used, remember to watch the metaphors and frames. People rarely come out and say that the tactic will work, only that you are a coward for not trying everything. If it does not work, it is not a matter of bravery, is it?

Point 2 is exceedingly complex, and will not be defeated easily. The people who make this argument are attempting multiple things at one time: They are attempting the ultimate in dehumanizations, that the person we are dealing with is so evil they are not human, deserve no rights, must be silenced, must be held secretly, everything other than what are the inalienable rights of a human being. They are attempting to assert that there is a language for talking to such walking demons, and it is the language of pain, humiliation, and psychological destruction. They are attempting to finish that argument off by asserting that they know which are the demons and which are the humans, often without much information (say, for example, only that they have paid a reward for them to the Pakistani ISI). The point man on this dehumanization policy has always been Douglas Feith. He began working on it under Reagan, as has been documented here before, by pushing for the U.S. not to ratify the 1977 Additional Protocols to the Geneva Conventions, which would have detailed the rights and responsibilities of non-state actors in conflicts of various international and non-international character.

He was joined by others, but the final set of work involves no ratification of the Vienna Convention on the Law of Treaties, which would have dictated that the U.S. comply with the additional protocols because they had been signed, even if we didn't enforce them because they had not been ratified. It involves no ratification of the Rome Statute establishing the International Criminal Court. It involves a general reluctance to sign or ratify any treaties out of the U.N. be they on land mines, on cluster bombs, or the Convention on the Rights of the Child. A full list of the U.N. treaties and the status of the U.S. is online, there are a lot of gaps.

As the Torture Awareness Month continues, and the International Day Against Torture approaches, it is worth questioning something very basic about American foreign policy. Would someone who wished to repudiate the dehumanizations and abominations of a policy, based on invocation of extreme evil and finding places beyond the law, also be willing to take a fresh look at those gaps? As Scott Shane reports on Jack Cloonan's testimony in the New York Times,

“Gaining the cooperation of an Al Qaeda member is a formidable task, but it is not impossible,” Mr. Cloonan said. He said he saw Qaeda operatives who had pledged loyalty to Osama bin Laden “cross the threshold and cooperate with the F.B.I. because they were treated humanely, understood what due process was about and were literally seduced by our legal system, as strange as that might sound.”

That being the case, how much easier would it have been to seduce away the whole war on terror, had the status of the terrorists been clearly delineated by the 1977 Additional Protocols? Is it really true that ratifying them would be wrong because it would give unwarranted status to terrorists, or is it rather true that in a world in which mistreatment is universally wrong, as the Christians say, even unto the least of my brethren, such terrorists would have been easily found, interrogated, and brought to justice in a court of law? All indications are that compassion even to the worst of the worst isn't just good behavior, it's effective police work and good policy.

Framing for Containment

2008-06-07T22:55:00.000-07:00

At a recent panel discussion at Stanford University, one of the panelists, answering a question about how the struggle was going for finding facts, defending prisoners, and getting rights at Guantanamo, said something at once surprising and depressing. Amant Raut, finishing up his response, suddenly said, "They're framing things before we can, they're inventing vocabulary so fast we can't keep up."

The Language of Frames

I'm not a stranger to the language of framing, of cognitive science with it's processes of recruitment and its interaction with language. But just to be sure, I went and took a look at George Lakoff, and read about why I shouldn't think of an elephant. The essential point is that if a situation is described well by a frame, that is, an empty prototype which is then filled with the specifics to become an interpretation. If the frame is well established, a word or two from the frame become a metaphor, and then becomes the symbol for the subject matter. This is powerful politically, if one side of a debate can adequately frame the issue and construct a powerful metaphor, every time the issue is discussed, the mere use of what has become the standard vocabulary by that point, draws up a frame that is advantageous to the party that framed it. We speak in metaphors most of the time, and we don't examine them usually (George Lakoff, Don't Think of an Elephant, see ch. 1).

So how has torture been framed recently? Say torture in the mainstream media right now, and they will talk about waterboarding within the paragraph. The words illegal enemy combatants, and probably enhanced interrogation methods, and Guantanamo Bay will show up soon after, perhaps the words high value detainee. The frame in public opinion is that some high value detainees were waterboarded soon after September 11, it was a different time, it was legal then because they were illegal enemy combatants, we were worried about another attack, the president approved enhanced interrogation methods, those to whom the methods have been applied are at Guantanamo Bay, they are being brought to trial in front of the Military Commissions. Right?

In this atmosphere, what ensues next is a discussion over whether or not detainees at Gitmo were tortured, and a discussion over whether waterboarding is drowning or simulated drowning, and inevitably a discussion over whether or not torture produces useful intelligence or only what the interrogator wants to hear. Here is the list of words, remember these, these are the frame:

torture = waterboarding
prisoner = detainee
detainee = illegal enemy combatant
imprisonment = Guantanamo
torture victim = high-value detainee
information = prevent another attack
back then = right after September 11
now = trials, laws have changed
court of law = Military commission

Dry Drowning and Torture

In the context of this frame, I got an email of the video of the CNN report on dry drowning from Jim White -- we should look at this, it shows that waterboarding can cause lasting harm, even death. I demurred, there are some things about that video. What happened is that a young boy in South Carolina had a near drowning incident at the pool, after which he walked home. His mother noticed he was acting tired while bathing him, he said he felt so, and he lay down for a nap. He stopped breathing, when he was noticed, and rushed to the hospital, he did not survive. The incident is being called dry drowning because he wasn't in the pool when he stopped breathing. The video is a little odd in places due to strange use of terminology and interpretations, the correspondent keeps saying ingest instead of aspirate, and she has a strange interpretation of the symptoms of hypoxia (lack of oxygen to the brain).

Actually, most drowning occurs with very little water in the lungs, until either deep unconsciousness or death relaxes the muscles and the water enters. A natural reaction is laryngeospasm, which closes the passage to the lungs keeping the water out, before that. The spasm can fail to release again, or it can occur when there is very little water present, all are called dry drowning. Further, water or salt water aspirated into the lungs can cause damage there, which leads to pulmonary edema and the alveoli ceasing to function, again resulting in asphyxia. The last is closer to what happened in this case.

And Jim White is right, the subject of dry drowning is apropos to the subject of torture and the debate on the government's use thereof. And it is related to waterboarding, and does show how you could die from it.

And according to Professor Lakoff, if that's what we do, we will reinforce the current frame. So we can instead use the sad dry drowning incident to create a different frame, and populate it with different views of torture, and perhaps not do that reinforcing that leads to protecting those in the administration and around it who have done things they should not have.

In one incarnation especially, waterboarding is dry drowning. The version with the saran wrap placed over the victims mouth, especially. When the water is poured on, the inability to breathe through the saran wrap, coupled with the water being poured on the victim, make the victim believe he is drowning, and trigger the reflex - the panic, and the laryngeospasm, which closes off the passage to the lungs. The victims frequently pass out, they are drowning. This is why it works without actually forcing aspiration of water into the lungs, a distinction that the administration has been using to split hairs and say that this is not the water torture of Torquemada, but rather that of Pol Pot. But as the sudden interest in dry drowning leads people to the triggered reaction being the direct antecedent to drowning, it becomes obvious that waterboarding is drowning, nothing simulated about it, as Malcolm Nance has frequently tried to get people to understand.

But what happened to the boy is actually closer to something that happened to someone else. The other kind of dry drowning occurs because the lungs become damaged, causing pulmonary edema (swelling in the lungs in which they fill with fluid), leading to the hypoxia and in this case to death. Do you remember the Ice Man, Manadel al Jamadi, whose body was photographed at Abu Ghraib so famously? He died because he asphyxiated due to being in a position called (in the doctor's report) "Palestinian Hanging". That kind of asphyxiation is often brought on by having previously sustained an injury that either because of shock or lung damage aggravates the effects of being in a position in which it is difficult to breathe. The MPs on the cell block learned that he was dead because they had been asked to tighten up his restraints because he'd gone loose. That would be the "high cuffing", the aforesaid Palestinian Hanging.

The Spanish Inquisition Again

While waterboarding has grabbed all the attention, and is without a doubt cruel treatment amounting to torture, this "high cuffing" or "Palestinian Hanging" has plenty of documentation, and no one has claimed that it has been performed on only 3 "high-valued detainees". There is picture after picture of this position at Abu Ghraib. It is uniformly referred to in administration documents as a stress posture.

It is a modification of an Inquisitional technique called strappado. Strappado, and its more brutal cousin squassation, were the most used of torture techniques by the Spanish Inquisition because they were cheap and easy to do: throw a rope over a rafter, tie the prisoner's wrists behind his/her back, and hoist them into the air by their wrists. It becomes squassation when the prisoner is then dropped by slackening the rope and then caught by tightening it. This causes dislocation of the shoulders, and the Inquisitors found that it generally caused death in about 3 to 4 drops. Strappado, without the drops, causes nerve damage in about 15 minutes. Darius Rejali notes that, "The strappado can easily dislocate the shoulders and maim victims permanently. However, the same approximate condition can be achieved, without overall damage and for a longer period of time, by raising the handcuffed hands behind the back until the prisoner is standing on his toes; his hands are then attached to a hook." (Rejali, Torture and Democracy, p. 296). Or maybe a bed frame, or a bar in a prison window.

Can this form of torture kill, in it's milder form of high cuffing, the stress position? It killed the Ice Man. He died of dry drowning in a way, lung damage causing pulmonary edema plus a difficulty breathing due to his position.

That calls into question the frame above. Obviously torture is not equivalent to waterboarding. Instead, waterboarding is one possible means of torture, out of many that have been used. On this site, we have detailed the privation tortures: extreme solitary confinement, sleep deprivation, sensory deprivation, being deprived of food, extremes in temperature. There are pictures of many more than 3 cases of strappado, there is documentation of a lot of solitary confinement, and sleep deprivation. Jane Mayer documented sensory deprivation done at black sites. Prisoners have lesions due to frostbite in outdoor pens in Afghanistan. Homicides were documented at Bagram due to damage caused by pounding muscle tissue.

Framing to Reduce the Issue

And what of the other parts of the frame? If torture = waterboarding is not true, are any of the others? A detainee is normally one being detained for a short period of time, prisoner is what people who inhabit prisons are called. The excuse for not using such plain language is to avoid a term that might be confused with prisoner of war, which the people held in U.S. military prisoners are not, supposedly. This is the handiwork originally of Douglas Feith, who as far back as the Reagan administration sought to carve out a special place in the Geneva Conventions where the law did not apply, to put anyone who could be designated as a terrorist, a strange term in its use that implies someone who can be fought with a military, but treated like a criminal, but need not be charged like a prisoner of war, but need not be treated well, like a person from a country that hasn't signed the Geneva Conventions. If there is ambiguity there, it is also Feith's work, the Additional Protocols of 1977 were intended to fix it, and it was because of this man they were not ratified by the U.S.

From there, just a memo or two by John Yoo creates a new status for these people, illegal enemy combatant. Notice that this title requires two legal findings: that they are combatants, and that they are illegal, but they are called that in advance of either finding. These people are not in their greatest numbers, confined at Guantanamo Bay, which houses only 275 inmates. There are well upwards of 34,000 of these prisoners, but if the frame says Guantanamo, then the problem is much smaller. The title high-value detainee also requires determination. It implies that these people are guilty of a crime, which requires a legal determination, and it implies that they have information of value. The assumption of this status in even a single case in which the person is innocent will result in endless, brutal, interrogation. Never mind whether or not torture will produce reliable intelligence, it certainly will not if the person knows nothing, and there is no method we have heard of for determining that in advance.

Information can only prevent an attack if two things are there: it must be new information, and it must enable someone to prevent the attack by taking specific actions (that presumes that an attack was imminent). The record of the FBI statements given to the Department of Justice Inspector General, and interviews by Philippe Sands (The Torture Team, ch. 14) is one of information being given to interrogators on paper, from other forensics and sources, and, at best, they believe they have got intelligence out of a prisoner when the prisoner confirms these data. That isn't new information, it's a confession. The record also shows interrogations spanning weeks and months, before these confessions are reached. Not a record of prevention of imminent attacks at all.

Finally, we have the supposedly changed legal climate. The evil deeds were all performed back then, in the aftermath of September 11, when we were desperate to prevent an attack. The laws have changed. No, what has changed is the passage of the Detainee Treatment Act and the Military Commissions Act, plus some Supreme Court rulings. The last do not represent a change in the laws. The Court ruled that the treatment, at least as far as access to a properly constituted court and habeas corpus, was not legal. It is a very strange interpretation of a court ruling to assert that this means it was legal until the court pronounced it illegal. And treatment in violation of the Geneva Conventions and the Convention Against Torture is still being reported. Those prisoners in the Afghani pens? Still going on. Solitary confinement to the point of madness, that one is still going on even at Guantanamo. And the prisoners being arraigned are not appearing in court, they are appearing in front of Military Commissions, procedures so flawed that they have seen numerous defections from the ranks of their prosecutors, numerous suspension of the proceedings, and are now widely rumored to be moving swiftly in response to political pressure in an election year.

In the end, none of that frame is accurate. But focussing on only one part, waterboarding and Guantanamo, the purpose of repeating these two, that the torture we are opposing is waterboarding and the detainees that need to be freed are in Guantanamo, reduces the whole mess to a manageable one for the administration. It can be written by the papers in their sleep at this point. It's containment. And it's anything but the whole truth.

Not When We Do It

2008-06-04T10:07:00.000-07:00

Oh, here we go again. On Monday, Glenn Greenwald wrote about the new appointee to John McCain's campaign team, Michael Goldfarb. Among his other opinions, which were more the subject of that analysis, Mr. Greenwald cited a post that Mr. Goldfarb did on the Weekly Standard blog site, called, Trivializing Torture. Quoting at length,

And for what? The Times indicts the Bush administration for exposing terrorists captured abroad to "head-slapping, simulated drowning and frigid temperatures." Boo hoo. And why does the Times consider this such a dangerous policy? The reporters end the story with this quote, from former Navy lawyer John Hutson, which they must believe to be compelling:

“The problem is, once you’ve got a legal opinion that says such a technique is O.K., what happens when one of our people is captured and they do it to him? How do we protest then?” he asked.

As Jules Crittenden notes in response:

[The] article neglects to mention we are fighting an enemy that considers powerdrills into kneecaps and videotaped beheading of captives business as usual. That in fact, we have yet to face an enemy in the modern era that observes anything approaching the standards we do. Germany, Japan, North Korea, North Vietnam, Iran, Iraq. Disorientation, isolation, beatings, starvation, summary executions, torture … of the bone-breaking, organ-smashing, electrocuting, bloody-drawing variety.

That is, real torture. And it trivializes the seriousness of it to apply the word to "head-slapping, simulated drowning and frigid temperatures." It also trivializes the seriousness of real war crimes for someone to throw around the charge so promiscuously.

I see. Real torture. Apparently, Messrs. Goldfarb and Crittenden are experts on what constitutes real torture. Darius Rejali also worries about broadening the definition of torture. There are two ways he discusses that broaden it beyond its legal definition. One trivializes by asserting that many other indignities are torture. Oddly enough, for Mr. Goldfarb's argument, the other is by broadening it to include conduct of "insurgencies and rebel groups", by which Mr. Rejali means what are commonly referred to as non-state actors (Torture and Democracy, p.38) It's strange isn't it? These people deny prisoners status on a regular basis because they are not the military parts of a recognized state, and do not comply with the state requirements for a military. The same people completely gloss over the same distinction made about torture, when it suits them.

Personally, I'm all for granting the broadening of the legal definition to non-state actors. The behavior is abhorrent, it should be prosecuted and punished. But let's not have any illusions that the law does not put a higher burden on states, and therefore on our actions. Our founding documents put such a burden on us as well.

The Istanbul Protocol

As for what is, and what is not, real torture, the list these two authors subscribe to is quite interesting. They reject "head-slapping, simulated drowning and frigid temperatures." They assert "[d]isorientation, isolation, beatings, starvation, summary executions." I will give them the benefit of the doubt that the last one was written in a burst of passion. Summary executions are summary executions, not torture. They have their own criminal category, both under U.S. and international law. And why is this list better? They are of the "bone-breaking, organ-smashing, electrocuting, bloody-drawing variety." This is an odd assertion of reality here. Unless torture looks like what you see in TV shows and movies, it isn't real. If it looks like what is described in, for example, The Istanbul Protocol, it trivializes torture.

Fortunately for the rest of us, the Istanbul Protocol isn't an international treaty that the people from the Weekly Standard can lobby against signing or ratifying. It's a medical protocol for examining victims of torture. It goes into necessary detail. It does not assert that there must be bone breaking, nor organ smashing, nor electrocution, nor drawing blood. It does detail examining for these things. It dwells a lot on neurological damage. That's when the beating has been specially designed to avoid the kinds of evidence Messrs. Goldfarb and Crittenden demand. Like Falanga, the beating of the feet (p. 37), which has been alleged to be practiced on people in Iraqi police custody.

It also dwells on sexual degradation, on stress positions, on skin damage, on PTSD and depression, on the effects of sensory deprivation or solitary confinement, and near asphyxiation, as may be due to submerging the head in water, or preventing air from entering the nose or mouth, e.g. with a plastic bag, ...(there is a list on p.28, asphyxiation is discussed on p.39), you get the picture. It's interesting that these two experts do believe disorientation, isolation, beatings and starvation to be tactics of their real torture. There are people in U.S. custody that have been in isolation for years. There are disorienting tactics that include sensory deprivation for extended periods of time. There have been beatings: common peroneal strikes, I believe they were called in Afghanistan, some of which did such damage to organs that the victims died. Does that qualify as organ-smashing?

When a prisoner is subjected to "frigid temperatures" to the point of hypothermia, for instance Mohammed al Qahtani, who had to be hospitalized for bradycardia and low core temperature after such exposure, or people kept in outdoor pens in Afghanistan, some of whom have had water poured on them, resulting in frostbite injuries to their integumentary organ (I'm sure the two experts are aware of this organ, here's a hint, it's the largest organ in the human body), when hypothermia causes decreased level of consciousness, when it threatens to kill the prisoner due to the possibility of ventricular fibrillation, I would guess that the only reason these people do not believe that is torture is because no bones are broken or blood is spilt.

Note: For those interested in a more readable source on the types of tortures and their medical consequences, there are two excellent documents on the Physicians for Human Rights site. Go to here, and scroll down, the links are on the right.

The Real Definition of Real Torture

Simulated drowning, what is widely referred to as waterboarding, isn't torture, it doesn't break bones or spill blood, apparently. But if our enemies do it, then disorientation, isolation, beatings and starvation are torture, and we have never done anything that approaches what they do. We have a prisoner in captivity, Ali Saleh Kahlah al Marri, who is losing his sanity from isolation. That was in the list of tortures when the enemy does them that Jules Crittenden gave. We already had a few that did so, Philippe Sands details Mohammed al Qahtani (The Torture Team), we've FBI documentation on prisoners tearing their own hair out as a result of positioning and isolation. We've regularly used sleep and sensory deprivation on prisoners, not to mention that the frigid temperatures that Messrs. Goldfarb and Crittenden are so derisive of prevent sleep when they aren't causing hypothermia and frostbite. We've subjected prisoners to high temperatures and to extreme positioning, one man, the so-called Ice Man of Abu Ghraib died as a result of being stepped on and then positioned in a Palestinian Hanging (hung from his wrists from behind and above).

Positioning that allows no or almost no motion for long periods of time can cause rhabdomyolysis, when core temperatures above 106 degrees Fahrenheit cause the body's chemicals to denature. Either one causes poisons to be dumped into the blood stream, poisons which cause the kidneys to self-destruct. Would that count as organ smashing? How about being caged in the desert then?

These two experts belittle the statement of the Navy lawyer, John Hutson, about the treatment of our troops. It is obvious from the list, equating the disorientation, isolation, beatings and starvation that our enemies in the modern era have done with their preferred definition of bone breaking, organ smashing, and blood letting, that if these techniques are performed on our troops, they are torture. It is similarly obvious from the ridicule of head slapping, simulated drowning, or frigid temperatures, that if the same tactics are performed by our troops, or our CIA, or maybe directed from the White House or the OLC or the Pentagon, that it is simply not in the same ballpark with torture.

Which brings us to the operative version of torture that the Weekly Standard appears to employ: It's torture if done by evil people we designate, and it's not torture if done by the United States government. When the army of the righteous smashes organs, it's reasonable defense against an existential threat, when the axis of evil does it, it's torture. It is reinforced by a definition of torture based on Hollywood, or perhaps on Jack Bauer. Those are reality, what is done in U.S. military prisons is not. That bears repeating once more: What you see in the movies is more real than what is really done. Since we don't do what they do in the movies, We Don't Torture.

To me, that may not be trivial, but it's the most childish definition of torture I've yet seen.

A correction to previous posts:

I had used the figure 27,000 for the number of people in U.S. custody abroad, taken from the estimated 13,000 in Afghanistan and adding an estimated 14,000 in Iraq, although there are people elsewhere making up at least 500-1000. The Pentagon released figures about Iraq indicating that there are 21,000 prisoners there that they wish to disclose. So I will correct my total estimate to around 35,000 for now. But I would caution that if the rate of disappearance of prisoners in Iraq is anywhere near that in Afghanistan or elsewhere, then this number needs to be 40,000 or more. Apparently the war on terror is won just like all the other war ons. By imprisoning as many people as possible.

Waiting Won't Do

2008-05-31T19:24:00.000-07:00

This post is about advocacy. Because regardless of whether or not we plumb the depths of why the American public does not rally to end the torture and abuse committed against prisoners in their name, in our name, unless they do, this country will continue to do what it should not, and apparently in increasing, not decreasing amounts, with increasing, and not decreasing secrecy, in increasing, and not decreasing torture "cleanliness".

I am not an advocate by nature. My posts are an attempt to research and divulge facts that I find it hard to collect together, thinking maybe that by putting them together I make it easier for those who read them to try to get a picture of what has been going on. I am not a lawyer, I don't go argue cases for these people, I have never met them. Even so, I don't find the laws involved, the international treaties that everybody knows about, to be so abstruse that one needs any special training to understand their point. I don't know whether the prisoners are good or bad people, I don't seem to care. Do I care that they may have meant harm to me? It shouldn't matter when the concern is how we treat people, and something so basic as human dignity. I believe we are losing the battle against those who want to create a permanent, off the shelf, covert entity that operates beyond the law, beyond the branches of American government. People have said that a balanced attitude is to believe that they want nothing but the most patriotic of things for America, they just have gone about it in the wrong way. I find that hard to believe. Almost from the start, the efforts have been to change what was right and wrong, to change how the very most basic functions of government work, and finally, with the subject at hand, change the most basic ways in which we tell right from wrong.

If one focuses on what is easy to grasp, one gets a certain vocabulary, a mental space, populated with frames of violent torture, with concepts like alien illegal combatant detainee. The place is Guantanamo, the time frame is 2002 to 2004, the words are things like waterboarding, enhanced interrogation. There may or may not be something wrong with this mental space. It blends easily with others that allow, if not numbness, then containment. No one would be suggesting that we could put off investigating and prosecuting the wrongs committed in the name of this country if that weren't possible. We can wait to prosecute because we are believing that we are investigating a committed crime, then there is ample time to wait for the correct moment, the proper advantage, the right number of people on our side in Congress, the right president, the right moment, the right combination of factors that will maximize our advantage and allow us to win. Or to declare that we will change the way the country works, move forward instead of dwelling on the past. We have important things to do. We contain things in space and time because it makes them bearable. Politicians contain them in space and time because they fit better under the rug.

Do you remember the Heisenberg uncertainty principle? When you confine something in space, make the photograph sharp, make it so you can see every detail, then it expands in time. When you confine it in time, be sure of when it happened, how fast it is evolving, when it started, then it blurs indefinitely in space, and the picture isn't sharp. There is a limit to how much something with rest mass, defined by Einstein's famous formula, may be confined. You can take that principle to the bank, it's used in your cell phone, its used in the computer that you access the internet and read blogs on. It's very, very real.

In the case of torture by Americans or for Americans, perhaps there is an uncertainty principle at work as well. You can confine it, and the problem seems manageable. On this date, they began the torture of Abu Zubaydah, on the other, they started the sensory deprivation of Mohammed al Qahtani, this is when John Yoo wrote his memo, that is who was present in the Situation Room at the White House, we use saran wrap to do our waterboarding, it comes from Pol Pot not Torquemada, there are 14 prisoners that arrived from the Black Sites to Guantanamo, the Geneva Conventions says that an accused civilian may not be deported from the country of occupation. December 2001, January 2002, April 2004, October 2006 confine it in time. Confine it in place. The less energy it has, the tighter it may be confined, after all, a body of evidence with no momentum creates no change when it impacts your mind.

None of that is true if confinement doesn't exist. The only question that determines whether or not the whole question of American torture is something that can conveniently wait till the next president, the next session of Congress, Deng Xiaoping's four M's (ming tien, ming yueh, ming nien, ming bei, as the joke goes, tomorrow, next month, next year, next life), or whatever is this one. Is it confined? And that means, just like the uncertainty principle, do we see it clearly and where is it going?

First, do we see it clearly?

I was released from "solitary confinement" after being held therein for 37 months. A silent system was imposed on me and to even "whisper" to the man in the next cell resulted in being beaten by guards, sprayed with chemical mace, black-jacked, stomped, and thrown into a 'strip-cell' naked to sleep on a concrete floor without bedding, covering, wash basin, or even a toilet. The floor served as toilet and bed, and even there the "silent system" was enforced. To let a "moan" escape your lips because of the pain and discomfort resulted in another beating. I spent not days, but months there during my 37 months in solitary.

That was not from Guantanamo. It was from Ohio state prison (quoted in Philip Zimbardo, The Lucifer Effect, pp. 249-250). Waterboarding is easy to understand as torture. The prisoner gasps for life, the implements look medieval, the scene in the movie Rendition is gut wrenching to watch. Privation is silent, it doesn't look gut wrenching at any given time, no sirens or red flags go up to mark the disintegration of a personality due to sleep or sensory deprivation and solitary confinement, no marks or bruises mark the organ damage from hypo- or hyperthermia. By the time someone gets to interrogation, just shouting at them may be all that's needed to inflict this sort of torture, maybe all that causes the mind to shred is a touch that makes them to unclean to pray, their only hope of being saved from the torment they are in removed in front of any camera that will fail to show the sharp edges of what has happened. In 2006, Barbara Olshansky writes,

While the full population of the CIA's web of secret detention facilities has not yet been definitely ascertained, media reports, along with reports of several leading human rights groups, indicate that the government may be holding in excess of fourteen thousand people at more than three dozen detention centers around the world, at least half of which operate in secret (Democracy Detained, p. 219).

Where? She further reports a whole constellation of sites in Afghanistan. Bagram Air Base and Kandahar are familiar from the papers. Other facilities are not. Reports have been in our papers of prisoners in Afghanistan that were killed using "peroneal strikes". Comfortable, when there is violence, because we understand. That is torture, that is what we mean by it. Even Darius Rejali has trouble talking about torture that has no physical component, no beatings, no use of force. So we shudder, as we should, over descriptions like, "He was purportedly stripped, chained to the floor, assaulted, and left overnight without covering. He died from exposure." (Democracy Detained, p. 225).

Well then, if it wasn't contained in place, was it contained in time? Surely we now have those laws in place. We have people who sit in front of our congress and testify that the law has changed, or the situation has changed, or something has changed (Condoleezza Rice has used those words at least within the last two weeks if not the last few days). We have the Detainee Treatment Act, we have explicit bans against torture, we have Supreme Court decisions. We have revelations coming faster and more furious, we have testimony in front of the House Judiciary Committee, we have publication of hundreds of pages of reports about the FBI complaints, we have this under control? We are still talking about something in the past, something that will withstand the slow march of justice, the slow but inexorable wheels of congressional debate and testimony and an election that will bring to power a new government, elected by a people who want change, who want to move forward and not dwell on the divisiveness of the past, a new government, conceived in liberty and dedicated to the principle...

No. When a cancerous tumor is excised, there is remission and the patient believes they have turned the corner, it has been contained, the threat has passed, and the moments that seemed special when they were all one had left are now to become the normal moments of boredom and liveliness of a life with future. To find out at that point that the cancer has metastasized is devastating. Amnesty International is reporting, in Afghanistan, under the title, Abuse by International Forces, the subsection, Torture and other ill treatment,

ISAF [International Security Assistance Force] forces continued to transfer detainees to the NDS [Afghani National Directorate of Security], despite allegations of torture and other ill-treatment by the NDS. Attempts by international forces to monitor transferred detainees were inconsistently applied.
In addition, forces involved in the US-led OEF [Operation Enduring Freedom] continued to transfer people to the NDS and to US-run detention facilities, including at Bagram airbase near Kabul. US authorities transferred more than 100 detainees from Bagram and Guantánamo to the newly refurbished D-Block of the high security Pol-e Charkhi prison outside Kabul. It was not clear who had oversight of the D-Block. About 600 detainees were believed to remain in Bagram at the end of the year (Amnesty International Report 2008, Afghanistan).

So it is still going on? Perhaps this is just more of the same, after all, the Guardian reported on the United States' use of Afghanistan as a giant prison colony in 2005. So perhaps this should not be seen as something new. And besides, we hear from our government that prisoners are being released. There were many hundreds of prisoners at Guantanamo, there are now 275, the rest have been sent home. What does that mean? In April, the New York Times reported that they faced secret trials with little justice, back in Afghanistan. A fuller report, complete with numbers, and details about corruption and bribery, the name of the cellblock in question, the name of the Afghani agency that got them is available from RAWA, the Afghani women's civil rights organization. They are held by the National Security Directorate, the organization mentioned in the Amnesty document above. And the numbers? Perhaps since 2006 something has changed? If there are 13,000 prisoners in Afghanistan, then an awful lot are disappeared. After all, the ICRC reports 10,100 prisoners in 2008, and has registered 435 for the first time. Almost twice as many new prisoners that the Red Cross knows about, this year, than there are at Guantanamo. Easily ten times as many that the Red Cross does not know about as there are in Guantanamo. And fifty times as many in all. There are 14,000 more in Iraq.

So while we are blithely believing that hearings that might just produce David Addington (if he deigns to honor a subpoena from his perch in the fourth branch of government) are real progress, while we feel good about demanding from each of the remaining presidential candidates that they promise to close Guantanamo, while we feel righteous about asking Michael Mukasey to denounce waterboarding, or John McCain to vote on torture legislation, the number of new prisoners is as many as it took years to build up at Guantanamo Bay, the torture is still close confinement and passive subjection to harsh changes in heat and cold, there are still plenty of new prisoners that are prevented from sleeping night after night.

In short, we aren't winning yet.

June 26th is the International Day Against Torture. Before that day, can we do anything that will make the country arouse from its slumber on this one? By then can each candidate be forced to answer the question of whether or not they know what the other branch of government is doing in Afghanistan? By then can enough people write their congressional delegation to tell them that solitary confinement to the point of madness is torture too, even if no water lands on a prisoner's face? By June 26th we must raise a voice in this country. We must make it impossible to confine our country's misdeeds to a small enough place and time that it will fit between the shuffle of more comfortable legislation. We must make it uncomfortable for every politician from every part of the spectrum to appear in public without these questions answered. There are a few towns in America in which it is illegal for these torturers to set foot. They should be persona non grata in every major metropolis, and every mayor should know that as far away as Washington is, there is moral rot in most prisons in the land and that is unacceptable too. It should not be comfortable to put the immigrants slated for deportation out of mind while they endure different standards of care that kill or abuse them in transport or detention. All that makes it too easy to endure what is happening in our military prisons abroad.

Please. We need to start changing this country now, not wait for November.

Before June 26th, every American should be confronted with a new reality: They don't hate us for our freedoms, they hate us for our prisons. We should too, not a few of them hold Americans at home, in conditions that make the tortures we commit abroad more palatable because we've grown used to widespread abuse. Prisons and torture are our cancer, and we are not in remission. We cannot wait for some bringer of change, some mandate from heaven. Not while we continue this mandate from hell.

Discrimination of Any Kind

2008-05-28T18:21:00.000-07:00

In the classic presentation of the ticking bomb theory, there is a bomb somewhere ready to destroy a large American city, and there is a prisoner who knows where the bomb is. The prisoner needs to be tortured because the crime of torturing the prisoner is outweighed by the need to save lives. In the classic rebuttal to the ticking bomb theory, one usually hears two things: That the ticking bomb scenario never happens, and that torture produces unreliable information because the prisoner will tell you what it is he thinks you want him to say, to get the torture to stop.

At least I think that's how it goes. In my mind, the torture is wrong always, so the decision is clear. There are many variations of the ticking bomb scenario, proponents like to stress that first one makes the question so stark that the answer is not in question, then one argues that the case has been made and it's a matter of judgment as to where the line is. Sometimes one needs to remember that there are plenty of unwritten assumptions involved, even in the unlikely case, that are not articulated.

The Unwritten Assumptions

The biggest among these is the assumption that there is no other way to get the prisoner to divulge the information. The next is that the information must stay secure, from the existence of the prisoner, to the tactic used, to the information divulged, since once the prisoner parts with the information, we must know that no one can change the circumstances. The next is that we know exactly how to get them to talk, and how to interpret the information, and how to link the information to the defusing process quickly enough to avert disaster. There are a quick set of names for these three unwritten assumptions: The first is called dehumanization. The prisoner is so evil that we can assume there is no non-violent way of getting the information. The second is called anonymity. The need for secrecy begets a need to do things that you don't want to know. The third is called control. The extraction of information is being done professionally, the ability to manipulate the prisoner is total. Oddly, these unwritten assumptions are exactly the conditions predicting the Stanford Prison Experiment. So the message to anyone advocating the ticking bomb theory is: Bet you can't do it just once. It is guaranteed to go out of control.

But the first assumption, like I said, is the biggest. There is no other way to get the information. This is frequently not an appeal to fact, it is an appeal to commonly held belief, or to gut instinct, or to any and all of the more vile emotions that underlie true dehumanization: racism, prejudice, xenophobia. There is a reason why the U.N. Convention Against Torture, Article 1, has more forms of torture than are commonly supposed (I was truly surprised with Philippe Sands for citing only the first two, interrogation and confession, The Torture Team, p. 169). Article 1 also includes punishment, intimidation, and coercion, and it includes the curious phrase,"or for any reason based on discrimination of any kind".

How strange. But if you look at the history of the U.S. recent descent into torture, this phrase says everything about that unwritten assumption, everything about why torture is really done. It isn't the ticking bomb scenario that gives rise to the assumption that torture has become necessary, it's this unwritten assumption: The prisoner is so evil that this must be done. Torture is the only language this prisoner understands. This was a requirement among the Greeks and the Romans (Rejali, Torture and Democracy p.36, or see also Harrison at A1-A3).

The assumption is pervasive. During the testimony on May 6th before the House Judiciary Committee, at one point after the statements were read and the questioning had begun, it was generally agreed between David Rivkin and the members of the Judiciary Committee, who also attempted to get agreement from others after Marjorie Cohn said that she would write a statute that would require that a prisoner from whom one wanted information would specify treating the prisoner with kindness and respect and build a rapport (see the webcast, at about 1:17).

The Forensic Evidence

But FBI documentation, available at various points during the history of the U.S. and its current problems with prisoner abuse, seems to say otherwise. The FBI has a different opinion of the Abu Zubaydah interrogation, in which the CIA, possibly with help from the National Security Council Principals, subjected this "high value detainee" to multiple "enhanced interrogation" methods up to and including waterboarding. They believed (p.ix) that they had begun to establish a rapport with the prisoner, when he was taken away for harsher questioning. The FBI also objected to the treatment of Mohammed al Qahtani, the prisoner whose interrogation Philippe Sands documents in The Torture Team. Aside from feeling that the interrogations would spoil the ability to try al Qahtani in court, they worried that it would taint the agents who interrogated him, if they did so after he had been badly treated. Evident in their testimony is the fact that they thought their techniques would work, but would take time (p. 84). As Mr. Sands so aptly points out, time should not have been the issue, as they had had him in captivity for the better part of a year (The Torture Team, p. 224).

It really wasn't that. The military and CIA interrogators did not believe the FBI techniques would work at all. The FBI special agent in charge during the first stages of the al Qahtani interrogation was interviewed (p. 90),

Demeter told the OIG that he argued with Miller that by using proven law enforcement interview tactics such as rationalizing the conduct along with the subject, joining the subject in projecting blame for the conduct on others, or minimizing the severity of the conduct with the subject, the barriers to confession are reduced and cooperation becomes more likely. Demeter told the OIG that these tactics may sound "touchy-feely" or "counterintuitive," but they had been very successful with hard core criminals in the past.

The real problem was that there was a perception, and still is, in the minds of the administration lawyers and spokespeople, in the minds of policy makers at the Pentagon, in the minds of the interrogators, and many others, that these are a fundamentally different kind of prisoner, that they will not succumb to rapport building techniques, that they are somehow different, somehow inhuman.

This is most certainly not an empirical observation coming from past history. The whole reason that the FBI had been asked to participate in the initial interrogations of people like Abu Zubaydah, and al Qahtani, and many others, was because of their interrogation expertise, and the fact that they had had good results interrogating al Qaeda prisoners in the past. Remember that famous August 6, PDB, the one called Bin Ladin Determined To Strike in US? It contains the following paragraph:

The millennium plotting in Canada in 1999 may have been part of Bin Ladin's first serious attempt to implement a terrorist strike in the US. Convicted plotter Ahmed Ressam has told the FBI that he conceived the idea to attack Los Angeles International Airport himself, but that Bin Ladin lieutenant Abu Zubaydah encouraged him and helped him facilitate the operation. Ressam also said that in 1998 Abu Zubayday was planning his own US attack.

Ressam says Bin Ladin was aware of the Los Angeles operation.

The Case of the Real Ticking Bomb Warning

That PDB, the closest thing in the whole nearly eight years of the Bush administration to a ticking time bomb warning, got its evidence by FBI Behavioral Analysis Units, rapport building, and non-torture interrogation of an al Qaeda suspect, one who, like al Qahtani, had been spotted trying to enter the U.S. by an alert border agent -- evidently the border agents catch even al Qaeda suspects with standard methods with some regularity, too.

The effort to dehumanize, the need to present those who are now called variously islamofascists, jihadi terrorists, or Muslim extremists, by the administration, as something other than human beings has a history dating to the 1980's and Douglas Feith's successful lobbying in the Reagan Administration to not ratify the 1977 Geneva Conventions First Additional Protocol, with other roots in the New Sovereigntist movement that disliked the perceived encroachment of international human rights treaties and protocols into U.S. sovereignity.

But the text of the U.N. Convention Against Torture Article 1 says, essentially, that all the reasons for torture that were conceived of by limiting access to legal opinions, by discussing techniques without expertise, and by forming interrogation policies by ideology instead of science, are reasons that have been seen before. Just like the excuses of, "I didn't see it," when the ICRC presented the administration with complaints about Guantanamo and Bagram, which the ICRC had seen before and therefore had a policy to disseminate their documents to the entire chain of command.

And so, that last reason for harsh treatment has meaning, in retrospect, when it turns out that the prisoner would have given up the information about the ticking bomb without harsh treatment: or for any reason based on discrimination of any kind. It covers the other reasons for torture perfectly. It's as clear in this case as the clause in Article 2: No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

Death and Memorial Day

2008-05-25T17:36:00.000-07:00

Some things are inherently hard to talk about. Others are banned from conversation, an implication that no matter what is said, it will cause pain or hurt to someone. It's hard to talk about death, and gets harder as the number of deaths go up. But at this point in my ruminations about the public attitude about torture, it all comes down to a change in how we perceive death. And so death must be talked about, no matter how hard. Memorial Day in the United States is a day when it is appropriate to talk about death, about some deaths, but it makes this talk no easier.

Over at Firedoglake, loosheadprop has made this job just a little easier, in her discussion of jus cogens, she notes, of her law professors at Yale,

They followed an evolution of human rights law from periods when citizens would surrender all of their rights in exchange for security (Dark Ages anyone?) through the Enlightenment's ideas about natural law, with detours through Communism's "collectivism" and down to the authors' modern vision of a "policy based" approach to human rights.

I wish it were so. I wish that human thought was well-ordered, an inevitable march of evolution. But the Dark Age for torture that was ended by John Donne by the Enlightenment, followed on Pope Nicolas I's unequivocal ban on torture in 866 (see here, at B1) as unacceptable under both divine and human law, because it produced confession that was not voluntary. A few hundred years later, facing the usual "existential threat", the Dark Ages reversed compelling law, as the U.S. seems to have done recently. I am coming to the conclusion that the problem is death, and that what is keeping many of Americans from understanding the concepts in looseheadprop's piece, is the notion that nothing is as important as death.

Here Comes the Hard Part

We have become a culture that enshrines some deaths as beyond speech. I wish this weren't the problem, but I think it is. Because we cannot talk about certain deaths in the past, we are unable to put death into its proper place in our thoughts -- because we have these outstanding atrocities that allow the loss of life to seem always evil, and that allow the preservation of life to trump all other concerns. Death becomes primordial, schemes to defeat it become obligatory, questions are not allowed to be asked.

So let's talk about September 11 and Pearl Harbor. Even before the September 11 attacks, the term "Pearl Harbor like event" to denote a cataclysm that would change the way Americans think of their society, and facilitate change that some thought necessary, was in documents produced by the Project for a New American Century (in Rebuilding America's Defenses:Strategies, Forces And Resources For A New Century, 2000, the group apparently has taken their website down). The comparable part of the two events was the death toll in American lives. 2350 Americans died at Pearl Harbor, 2973 died as a result of the September 11th attacks. And to many, if not most, that was all that mattered when concerned with the subsequent response. And so there is a perception of an existential threat.

They were not equal as existential threats, though. Japan was an aggressive nation-state, with a large war machine, conducting an essentially repeatable attack. Except for the element of surprise, they could have subsequently done the same attack, executed the same set of maneuvers against, for example, a large American city. They had already invaded China and parts of Indochina, and would soon occupy Burma, challenging the British Empire. They could, and did, sustain full scaled war with the United States and plenty of other countries for several years afterward, continuously, at great cost of human lives in all the places those wars were fought.

Al Qaeda in no way posed or poses such a threat, nor have they sustained such a war. The plan executed on September 11, was many years in the making, if you count the mistakes, the other attempts. It is fundamental to much of the conduct of the United States subsequent to September 11 that we are facing an existential threat, like we faced after Pearl Harbor. It is therefore fundamental that our institutions and our public maintain their focus on what has become an obsession in America, the death toll. That is all that makes the events comparable.

That wasn't a nice thing to say, but there are things that are even less nice. Comparisons to the Holocaust, and to many grievous events in recent history are not, in many fundamental ways, permissible in America, or in Europe, or many other places. When Philippe Sands talks of comparisons between the Justice Cases at Nuremburg and the abuses after September 11 by the United States, he disclaims them:

The scale of the atrocity described in the Justice Cases was staggering and cannot be compared with what apparently happened at Guantánamo or Abu Ghraib. I felt uncomfortable even making that kind of comparison, but what struck me as a point of connection was the underlying cause...

The scale of the atrocity is, in modern times, defined by numbers: the extermination of 6 million Jews by the Nazis is a genocide, but the scale of death is the reason it is never compared, or compared only reluctantly. But Philippe Sands is right, the point is the underlying connection. The point is difficult to make because death stands in its way, and blurs the vision of many in the discussion.

More Hard Thoughts

Equally off limits is the preservation of life at great cost, though. This preservation goes on in hospitals all the time, and has only recently had much challenge. It is assumed in the notion of implied consent: A patient that is not conscious, or is not alert and oriented, is assumed to consent to the treatments needed to keep the patient alive. It is believed that any sane individual that is alert and oriented, under the circumstances, would give such consent, so it is implied. This goes further in applications of the Hippocratic Oath, actually the dictum of Galens to "above all, do no harm." It is interpreted much like implied consent.

A patient is kept alive at all costs. Frequently, the reason for keeping the patient alive is couched in an optimistic belief that a cure might be imminent, and the patient might recover, but this is obviously not the reality in some instances. I can recall a patient kept alive through two weeks of acute vasculitis, intense pain of the sort that was offered as possibly cruel and unusual in the recent debates about lethal injections, on the basis of the imminent cure argument. The patient clearly wanted to die, the doctors at the time dismissed that desire, and in fact would have been prohibited from facilitating it. There would never have been a way for a cure to have occurred and become practicable in such a time frame, the argument reflected an extreme fear of death in our society, and little else.

And what of beliefs? A sizable number of Americans alive right now wait anxiously for the Second Coming, believing that it will occur within their own lives if the conditions are right, and they will bodily enter the Kingdom of Heaven. There will be no death if that occurs, and it would appear that the importance of such an event as a source of comfort in people's lives would not be insignificantly tied to having cheated death: "Oh death where is thy sting, oh grave where is thy victory?"

It goes further: In The Torture Team, Sands records (p. 86) General Hill of the Southern Command as offering in response to questioning the tactics that had been approved by Donald Rumsfeld for interrogation, "They behead us." Execution in this manner is not humane by modern standards, and in fact is a deliberate insult: Those beheaded were killed that way because it is halal, the way of preparing the meat of animals, and so equates those killed with animals. But it is execution. Likewise, when the bodies of contractors were pulled from the vehicles in which they died and hung on a bridge, as grisly and offensive as it was, it was maltreatment of the dead. It offended because of the dignity of the dead, because of the attitude which did not pay enough respect for death and for the dead. But if death is not part of the prescription, as with most of the prisoners in U.S. custody, who have been subject to abuse or torture, then it doesn't rise to the level of this atrocity, this very wrong treatment of death.

Death is our "ultimate sacrifice." It is cited by some as the only part of "life, liberty and the pursuit of happiness" that matters, without life, the others are "meaningless". Our special place for it, if you will, in recent times, transcends everything, and the lack of it is justification. No one has died in terror attacks on American soil since September 11? Whatever the tactic, no matter how brutal, it is successful, don't criticize. It is okay to relegate the Iraq war to the back pages because of the invisibility of death. Not just the lack of images of coffins coming home, or the brutal scenes we saw in the photography of the Vietnam war. For we have been at this war for longer than World War II, and it has consumed only four thousand some lives.

Only? How can anyone say that? It's not right to mention it that way. But hasn't that been the attitude, both in reporting and in the prosecution of this war? It isn't Vietnam, just look at the difference in deaths. Never mind the real reason: the number of casualties saved compared to those lost has changed from 2.5:1 in Vietnam to 16:1 in Iraq. Those who would have been dead get hemicraneotomies and ICP probes, radical new surguries to the spine and the like. Were the toll to be according to the ratio readjusted to the Vietnam era, the toll would be 20,000 dead by now. It is probably this, and not the lack of a draft, that dictates the reaction of the American public, but to say so seems profoundly impolite and inappropriate. It implies that Americans rate the awfulness of tragedy based on a body count, based on death alone.

John Yoo famously equated "severe pain" rising to the level of torture to pain equivalent to "death or organ failure." Pain to the torture victim isn't significant in this view unless it approaches -- death. Death is the prevented effect in the ticking bomb theory. Death has been cheated by 4 draft deferments and 4 coronary bypasses by the man who keeps coming up as central to the shift in American policy away from international law and towards techniques that include torture. It's all about death, about avoiding death at all costs, about the ultimate sacrifice.

And so, to come back again to the theory of evolution and jus cogens in international law: It is the fear of death that causes the "surrender all of their rights in exchange for security." Enlightenment comes, in the sense of jus cogens, in understanding the existence of a fate worse than death. Otherwise there can be no "Give me liberty or give me death!" because it makes no sense, it would be insanity to choose something other than defeating death, even for an instant.

It is Memorial Day in America. In remembering those who have fought and died for this country, in hoping for that permanent peace, it is worth remembering that there are things that are worth such sacrifice, and there are things that are worse than death itself. If we cannot remember that the sacrifice of soldiers by its very nature implies that fear of death should not cause us to dismantle the evolution towards human rights, and away from torture, slavery, and genocide, if we cannot believe that there are certain human rights that exist regardless of what a person has done or what they believe, then we have forgotten a perspective so fundamental, and acquired at such cost, that we cannot be considered to have evolved at all.

The Right To Know

2008-05-22T14:39:00.000-07:00

There's a lot of movement in recent days, here are some of the promising developments:

The ACLU has set up a new blog, and is currently devoting it to a week long symposium on torture. They are running at the rate of 3 or 4 articles a day by invited authors. Topics range from extraordinary rendition, to the new disclosures by the Office of the Inspector General at the Justice Department on the FBI response to detainee abuses, to some descriptive materials and discussion of the legal responses. It is well worth the time to go have a look at http://blog.aclu.org. While you're there, please remember that for every blog post you read here, or you read elsewhere, and for every opinion, for every book or documentary film you've used to stay informed on torture and violations of international or American or other laws, there were probably ten or maybe 100 documents painstakingly tracked down by filing Freedom of Information Act briefs, filing lawsuits, or supporting detainees with counsel or with court cases, that were all done on very limited budgets, by groups like the ACLU. So when you visit a site from any of these groups, if you are in a position to be generous, you should consider contributing.

Scott Horton and others are starting a campaign No Torture No Exceptions. You can read about the initiative in this piece by Scott at Harper's. h/t to George Hunsinger of NRCAT. And you should mark your calendar, as I have mentioned once before, for June 26th. Now there are two reasons to do so: It is the International Day Against Torture, celebrating the entrance into force of the United Nations Convention Against Torture and Cruel, Inhuman and Degrading Treatment, a treaty that became active on that day in 1987. The treaty was the codification of some of the tenets of the Universal Declaration of Human Rights. Which brings us to the second reason, because it was an American, Eleanor Roosevelt, who first spearheaded that declaration.

June 26th is also the day the House Judiciary Committee will reconvene to hear testimony from John Yoo, John Ashcroft, David Addington, and should hear testimony from Michael Mukasey and Alberto Gonzales as well, on the policies and events that have lead to the torture and abuse of prisoners in American custody. It is the saddest of ironies that we will have to celebrate Eleanor Roosevelt's hopes with hearings to determine the extent to which the United States has become a state that sanctions torture.

So perhaps the best way that any American, and maybe anyone else who is concerned that these hearings lead to justice, can celebrate is to write. Write to the members of Congress, and tell them the questions that need to be answered. If you've ever watched a committee hearing, you know that each member has just a limited time to try to get information on the subject at hand. The more heads are involved at coming up with the best and most incisive questions to ask, the better the questions will be, and the more truth will be revealed. It's time for the people to interrogate the interrogators. Even if you cannot think of something to ask, you should let them know you care about this issue, you can send an email easily here.

Knowing Not Knowing

It's a take off on a Taoist expression, 'wei wu wei', 為無為, usually translated as 'doing not doing'. Perhaps it should be written zhi bu zhi, 知不知, 'knowing doesn't know'.

It's a good description of where we are with many of the leads of evidence on the involvement of the American government, and indeed, to some extent, American society, in the business of torture. At this point, we know that we do not know everything that we should. We do not know exactly when the torture started after September 11th. Philippe Sands, in The Torture Team, documents when the memos sanctioning torture got to Guantanamo Bay, and resulted in the torture of Mohammed al Qahtani. He certainly wasn't the first, Abu Zubaydah had been tortured before, Ibn al Shaykh al Libi before that. At best, detainee 063, as Mr. Sands calls him, would be the first under explicit written sanction by the U.S. military.

We think. The new document prepared by the Office of the Inspector General of the Department of Justice about FBI conduct and reporting of abuse and torture, talks of FBI agents documenting and asking for guidance about military interrogation tactics in the early autumn of 2002. The memo Philippe Sands is working with didn't arrive at Guantanamo until early November. At any rate Abu Zubaydah was interrogated much earlier, and the CIA got their memo in August. al Libi had already been interrogated, reports are that the Egyptians did the dirty work on that interrogation at CIA insistence.

Before that, things are hazy. During the invasion of Afghanistan was when detainee 001, John Walker Lindh was captured at Mazar-e-Sharif. He was mistreated, kept in a shipping container strapped to a board, without clothing, shortly after his apprehension. The practice of containering, or shooting at a container full of detainees, was supposedly occuring around that time as well. And we know that the CIA interrogated prisoners at Kohat prison in Pakistan as the Taliban and foreign fighters were fleeing there during the invasion.

Knowing Not Knowing

'Knowing not knowing' would also describe the attitude towards much that has been done to detainees. We citizens of America are vaguely aware of how they have been treated. Accounts vary. When only parts of the treatment are related, the sum total is lost, and possibly with it, the empathy. It is hard to picture belly slapping as what it is, a hard open handed blow to the abdomen, and picture all that it is doing to a prisoner. The circumstances are not appreciated. There are contexts and substrates, factors that multiply the pain.

We can't relate to some of the treatment the way we should. Prolonged extreme isolation is listed as a tactic that the FBI agents found to be torture -- they were applying the criterion that Americans believe it is torture if it is done by another country to our soldiers. It's a good call, it causes profound changes in psychology including dissociations that become psychotic. But we routinely subject prisoners to extended isolation in our nation's prisons, and we have been 'not knowing' that as torture. Extreme isolation is worse than isolation, but even so, perhaps we are not as nice a people as we would imagine, if a profound torture doesn't sound like it to our ears.

We find beatings to be horrible. But the "Palestinian hanging" that killed Manadel al Jamadi, we don't recognize. We see it over and over again in the Abu Ghraib pictures. We see something like it on cop shows on TV. We see hog tying by police in some arrests. To someone with an injury or shock, or lung damage like al Jamadi had sustained, these techniques lead to positional asphyxia (suffocation due to a position in which a person cannot breathe). Emergency medical workers are forbidden from transporting patients in some of these positions for that reason. This manner of death was one of the ways people died by crucifixion. But it doesn't look that bad. We don't know it as torture until we're told.

Knowing Not Knowing

'Knowing not knowing' is profoundly the means by which the mind itself shreds under the 'clean' tortures. Sensory deprivation teaches the mind to know not knowing. No sensory input should mean no consciousness. It is natural in a state of sleep. It isn't natural in a wakeful state. There are religious and meditational practices that strive for such states. But this isn't one of them. No one sits in a zendo -- eyes fixed on the wall, legs crossed on the cushions, hands carefully folded with thumbs touching -- fearing imminent death, in a state of total captivity, with shackles and a total uncertainty of the future.

We who observe cannot know what we do not know, but we can know that not knowing can be painful. The Convention Against Torture bans threats of death both to the prisoner or to those the prisoner knows or cares for. But there is more: The constant pain of not knowing is considered torture by the U.N. Committee that oversees the adherence to the Torture Convention. Completely disappearing a prisoner is a form of torture. Consider the effect on the relatives of the prisoner: They do not know if this person is alive or dead, for years on end. They may not be able to subsist with that not knowing -- should they continue to search or abandon the prisoner? Is the prisoner the wage earner? What are the social customs for a widow, for example, if a widow is even what a person is, whose spouse has simply disappeared. The prisoner, in the dark night of prolonged extreme isolation, or even just in the isolation of no communication to the outside for years on end, always has the time to ponder this. And knowing this not knowing causes extreme pain.

June 26th, we must know what we do not know. Knowing not knowing could drive America mad.

Legitimacy

2008-05-19T16:29:00.000-07:00

Convergent threads often seem like coincidences when they show up together. You are working on an idea, and a colleague says something of great use to you, further discussion proves you have been having similar thoughts. A theory awaits a breakthrough, something happens that provides it. When the subject is torture, it seems that many threads lead to legitimacy.

Torture and Democracy

That's the title of a detailed study of torture by Darius Rijali. George Hunsinger, who teaches at Princeton Theological Seminary, and founded the National Religious Campaign Against Torture (NRCAT), calls it, "quite simply the most authoritative study of torture ever written, " in his review in the upcoming July edition of Theology Today. According to the review, the book contains, in addition to a comprehensive catalog and history of techniques, an analysis of the relationship between torture and democracies. The results are quite ominous: the torture fails to generate the information it was started to generate, and the corruption it entails, and the creation of the class of people who have been corrupted, is a threat to a democracy. As Dr. Hunsinger puts it,

When politicians first heard of the torture, they denied it happened, minimized the violence, and called it ill treatment. When the evidence mounted, they tried a few bad apples, disparaged the prisoners, and observed that terrorists had done worse things. They claimed torture was effective and necessary, and counterchallenged that critics were aiding the enemy. Some offered apologies, but accepted no responsibility. Others preferred not to dwell on past events.

The torture would continue, yielding no reliable information, while the democracies remained mired in war against weaker enemies. "Soon," states Rejali, "politicians had to choose between losing their democracy and losing their war. That is how democracies lose wars." It is also, we might fear, how they lose their democracies.

Darius Rejali also wrote a pair of pieces for Salon, after the Abu Ghraib scandal broke in 2004. He outlined the fall of the French 4th Republic to the tortures during the Battle of Algiers. Dr. Rejali in recounting the history of torture in Torture's Dark Allure (Salon), mentions two ways in which torture affects democracies: it gets legitimized against whole classes of people (he mentions the Greeks and Romans using it against slaves and 'lesser citizens'), or it corrupts a government that legitimizes its use, by creating an unaccountable executive (the Italian city states) or military (the French 4th republic), that brings down or takes over the government.

Curiously, he says that the first option, circumscribing torture to an entire class of people, is not available to modern states. That leaves the second, with its prediction against any modern state that uses torture. Then, he discusses 'clean torture', to which Dr. Hunsinger responds,

A paradoxical point is made about the importance of public monitoring. On the one hand, it has recently led to the adoption of torture techniques that are difficut to detect. Torture that leaves no marks – like sleep deprivation, waterboarding, long-time standing and subjection to long periods of extreme hot or cold – are no less devastating to the victims (and the perpetrators) than torture that leaves visible scars, but because they are stealthy, they are now preferred by the democracies that resort to them. (Rejali unfortunately dubs this development "clean torture," a repugnant term that one hopes will fail to catch on.)

The threads leading to legitimacy perhaps speak to a new implementation of both outcomes in the current context.

The Tale of the Red Crescent

In 2005, the Third Additional Protocol to the Geneva Conventions added the Red Crystal to the Red Cross and the Red Crescent as symbols of neutrality under the Conventions, ending a five year dispute that originated with the petition to use the Magen David Agom as an alternate symbol. It's interesting that the dispute centered on religious symbolism, and got very heated at times. The modern conception seems to be that the Red Crescent is used by Muslims because they objected to the Christian religious symbol (the Red Cross) being used. Presumably, the desire to use the Jewish religious symbol was from similar sentiment. That lead to wrangling during which shrieking headlines by some proclaimed that groups wanted a "red Nazi swastika"!

The red swastika had been proposed, but not as a Nazi symbol, and therein lies the strangeness of the whole debate. Because to large parts of the world, the swastika is a religious symbol that has nothing to do with whether or not it was appropriated by the Nazis for a brief period of history, it having been used since neolithic times. A religious symbol was associated with a state power that was repugnant and the enemy of others. It turns out that that is why the Red Crescent was also adopted, because, to a High Party at the time, (1870's), the cross was the symbol of an enemy of the Ottoman Empire in war, that is, the Crusades. When the cross and crescent were formalized in 1929, neither had been adopted for their religious connotations: one was adopted as the reverse colors of the flag of the homeland of the founder of the movement, and one as an alternative to adopting the symbol of a former enemy in war.

In the course of researching this, I discovered that much of the debate over symbols centered on legitimacy, and then, reading through the documents at the ICRC web site, and searching for current opinions of them, discovered that the Geneva Conventions are at least as much about conferring legitimacy as about anything else, aside from their obvious legally binding virtues. The Reagan administration did not adopt the 1977 First Additional Protocols out of fear that it would legitimize terrorists, most of the debate leading to their signing was about fears that they would legitimize various insurrections and rebellions. The recommendations to President Reagan had been that they would legitimize the Palestinian Liberation Organization, which was not unfounded, given that the PLO had been invited to participate in the talks in order to legitimize the opinions with respect to liberation groups.

The mantra recited about terrorists is that they do not wear a fixed emblem and carry their weapons in plain sight, which is supposed to de-legitimize them with respect to the Third Convention on prisoners of war. In point of fact, it actually, at the time of the treaty, probably referred to 'spies and saboteurs' whose punishment for illegitimacy was to be held incommunicado, not denied the entire treaty. The treaties were, after all, the byproduct of multiple European wars, not guerrilla struggles that became more common with decolonization.

Upholding the Law by Withholding the Law

Philippe Sands, in The Torture Team, has a curious chapter (chapter 5) about Douglas Feith, in which Feith advocates that upholding the Geneva Conventions requires withholding their protections (p. 33). It is an argument based on incentives. If a party does not obey the Geneva Conventions, then if their soldiers who are hors de combat are granted protection, it removes the incentive for that party to adhere to the Conventions, which is the point of the Conventions in the first place. Consequently, by denying Geneva Conventions protections to the Taliban and al Qaeda, even, apparently, Common Article 3, one is strengthening the power of international humanitarian law to be a humanitarian force in war.

But Mr. Feith has a longer history with the Geneva Conventions than that, as Mr. Sands mentions, and as is readily available information on the Internet. The author of the advice to President Reagan urging him to withhold sending the First Additional Protocol of 1977 to Congress for ratification was Mr. Feith. The question was, of course, legitimacy. Terrorists, specifically the PLO, would gain legitimacy under the protocols, because they would need to be treated as prisoners of war if captured. Consequently, the reason the Conventions contain no explicit language for dealing with soldiers who do not display distinctive marks and carry weapons openly other than spies and saboteurs, the reason that the Geneva Conventions cannot apply to them because they have not agreed to abide by them with signatures, is because they are not allowed to, because they are illegitimate. No incentive can change that, no matter how much they might desire the protection of the Conventions, the same voice that argues that denial of protection is an incentive to abide, refuses their ability to accede. In a very simple way, they are not entitled to protections because they are illegitimate, not because they do not abide.

Legitimacy and Rijali's Consequences

And so, we find that legitimacy is the key to understanding the modern consequences of torture. To Dr. Rijali's first category, the whole class of slaves and lesser citizens, corresponds the notion of a terrorist, or terrorist state. People who do not have the right to be protected from torture, and cannot acquire that right. As is frequently pointed out, terrorism is a tactic. The label terrorist, however, is the modern nation-state's concept of an illegitimate. The terrorist is at once a military target, and subject to peacetime proscriptions against murder. A terrorist is not a legitimate soldier, but is not a legitimate civilian, i.e. criminal, either. In very real terms, a terrorist is an outlaw. A person who has no rights.

This is not an argument in favor of those who have commit heinous violent acts. It is an argument that the designation has evolved into a terminology for someone who is an enemy of a nation, and is without rights upon capture.

Legitimacy is also the key to Dr. Rijali's second category, and his characterization of 'clean torture'. An interrogation technique is still legitimate if it is not torture. As Dr. Rijali himself recounts (Torture and Democracy, ch. 1), torture through most of its history meant physical torture. Psychological techniques are newer, they are cleaner, and the collective unconscious, to borrow from Carl Jung, has not kept up in its archetypes. In the public mind, torture is still associated with loud cries of pain, with physical injury, with the rack and the white hot poker. By creating techniques that lack the attributes needed for the commonly held frame, a method for bypassing state legitimization of torture exists for a democracy. Democracies are answerable to their people, and if the people do not believe a technique is torture, then its cruelty is masked. No need to conceal torture by battering a person's feet, when you can make it invisible by battering the mind.

But the effect on the torturer is the same, no? Because the torturer is the one who comes to love the violence, the brutality, the control. And it is the league of torturers, their enablers, and their supporters, who bring down democracies, who strengthen executive branches, who challenge 4th Republics. They are the minds for whom there is no clean torture.

Back in the Day

2008-05-16T08:14:00.000-07:00

Facing a New Kind of Enemy

The United States faces an existential threat, one that threatens society to its very core. Militants are jailed by a War President. After they are jailed, there are meetings to decide how to keep them, meetings about what to charge them with. They are subjected to harsh conditions. Public opinion runs high against these people. Militants on Hunger Strike! the papers proclaim. The U.S. is required by a treaty to treat prisoners of war humanely, but these are not prisoners of war.

In their prison, the "high value detainees" are subject to solitary confinement, twenty four hours a day. They are denied access to lawyers, while lawyers fight to file habeas corpus petitions for them. They are stripped, they are slapped, reports surface that a detainee has been beaten unconscious and left on the cell floor, untreated. They are shackled by their wrists to the ceiling and left there overnight. Meanwhile, a prisoner with a heart attack is ignored, and denied medical attention, and dies. Meanwhile, immigrants and minorities are subject to some of the same privations. The health care for the poor is so bad that people go to prison to obtain medical procedures. Members of some immigrant groups are castigated and demonstrated against.

The detainees start to hunger strike. The alleged leader, already in solitary confinement, is subjected to a long interrogation, psychiatrists are asked by the government to help break the detainees. The President is kept at least nominally informed of the tactics, and makes public statements that the tactics are humane and gentle. The high value detainees are subject to sleep deprivation, bright lights are shone in their solitary confinement cells once an hour to keep them from sleeping. The hunger strike continues, they are subjected to conscious orogastric intubation, which causes gagging and vomiting. They are subjected to conscious nasogastric intubation, more vomiting. Their nasal passages and throats are raw and swollen. Still, public sentiment is that they have attacked the country at its core, and after all, the country is at war, the President is seen as right to deal with the militants. The Militants, the Militants, the threat to society they pose.

Word seeps out to the press about the real conditions under which they are held. Terms like "brutality", "inhumane", begin to be used. The forced intubations, the bite blocks, the shackling start to be criticized. Judges rule that they are being held illegally without charge. Words like "torturous treatment" surface.

In the end, the War President capitulates, and the militants, still castigated by the press while their treatment is condemned, are released. Somehow, the existential threat is no longer operative.

Alice Paul, and the other "Militants", members of the National Women's Party, are released from Occoquan Workhouse. The year is 1917.

Losing Our Nerve

This story is told in detail by Doris Stevens in the book Jailed For Freedom, complete with notes written by many of those jailed. It was popularized in the HBO movie Iron Jawed Angels. The headlines and some comments can be searched at the New York Times website archive search, try "Alice Paul" in the 1851-1980 archive advanced search, put it November 1, 1917 to December 31, 1917, and you'll see the headlines about the brutal treatment, try a month earlier and use "militants" and you'll see how they were characterized. The Washington Post site contains more headlines, searched similarly. It is not whatsoever an exaggeration that many considered the suffrage movement a threat to the very core of society.

It feels strange to use this story in relation to treatment in Guantanamo or Bagram (or Abu Ghraib, or Black Sites, or...). It's similar, but from the opposite direction, to the feeling that Philippe Sands talks about when he started to make comparisons to the Nazis and the trial of Josef Altstötter and Others, at Nuremburg (The Torture Team, ch. 4). In Sands' case, the comparison of the offenses of the U.S. government to the horrors of the Nazis is in itself difficult and repulsive. "I felt uncomfortable even making that kind of comparison, but what struck me as a point of connection was the underlying issue of principle..." (p.25).

I feel somewhat the same discomfort here, there is a very big difference between suffragists arrested for picketing a war time president, and Khalid Sheikh Mohammad, who in a different world might have been tried in a proper court with international venue, and convicted of heinous mass murder. But we are not in a different world, and most of the 27,000 or so of the prisoners picked up by the United States are thought, even by their interrogators, to have done nothing.

The reason the comparison needs to be made is that it is striking, and it dispels a favorite argument beyond doubt. All the treatment above occurred as stated, I only embellished to the point of referring to the suffragists as "detainees" and to Ms. Paul and some others as "high valued". All the treatment was quite tolerated by an irate public, as long as it was in the shadows, and the government assured the people that the prisoners were being treated well, and even liked the way they were being treated. The handwritten notes, the equivalent of the Abu Ghraib photographs or leaked Red Cross documents at Guantanamo, or coroner's reports at Bagram, got out to the press with the real story, and the American public reacted with revulsion against inhumanity and outrages upon personal dignity.

That was back in the day. According to arguments made by many in the administration, and by many frequently since Vietnam and again during this conflict, is that America has lost its nerve. America is hemmed in by international meddling, the Geneva Conventions, the United Nations. America knew how to defend freedom back in the day. America didn't shrink from harsh tactics. Call up Teddy Roosevelt, call up FDR. Talk about making sacrifices about existential threats. America is at war. Those people have no rights, show me where they deserve rights.

Actually, back in the day, once the truth about inhumane treatment surfaced, it was all over for the those who were treating the militants as an existential threat to be dealt with harshly. Because back in the day, people believed in human dignity. And that did not include harsh treatment, it did not include slamming heads against bedstands, it did not include forced intubation and shackling, or sleep deprivation and long solitary confinement. It did not include preventing all contact with the outside world, it did not include denial of habeas corpus rights, or detention for crimes never proven. Back in the day, even a war time president commanding the military in a declared war was not entitled to treat human beings, even those with less rights, that way.

And as for the comparison between a non-violent Quaker Ph.D. political scientist U.S. citizen campaigning for a just cause and islamofascist mass murderers who hate our way of life and threaten our freedom and democracy? Human rights are the very most basic of civil rights to which any human being is entitled. In order to espouse them, one must grant them to every human being. Withholding them does not punish the prisoner, it taints the nation that does so. This nation will never have the satisfaction, the closure, of seeing the person who conceived of and orchestrated the September 11th attacks tried in an internationally recognized court and duly convicted on evidence gathered by methods that were above reproach.

When the full truth comes out about what has been done to any of the 150,000 prisoners that have passed through U.S. custody in the global war on terror is known, we will see whether we have the decency to admit wrong and make amends that people had. Back in the day, back before the country lost its nerve.

Substrates

2008-05-12T13:45:00.000-07:00

Some things are baffling: How Americans could learn of torture and not react to the news. How American soldiers and CIA could practice torture and not disobey or refuse. How could the news media decide almost en masse to play down coverage of such a thing?

I know, I know, the banality of evil and all that. I'm not belittling it, I certainly do believe in it, but it really doesn't account for it all in detail, just says it can happen. It isn't like no one has fought very hard against the practice. There are awareness and advocacy organizations. There have been media exposés. There are phalanxes of lawyers who have been trying to represent prisoners in various courts for years now. There is medical documentation. There are confidential appraisements by the ICRC, there are public appraisements by Human Rights Watch and Amnesty International. House Resolution 626 and Senate Resolution 303 specifically mention torture and cruel treatment. Letters from members of the House of Representatives have called for the appointment of a special counsel to investigate possible war crimes connected to torture at Guantanamo, in Iraq, and in Afghanistan.

Then why, given that torture is shocking to human beings, is it so hard to arouse the public?

Accommodation and Sensitization

So this is a post about substrates. How the underlying conditions change what is seen to something else, in all of the minds that interact with it. There are actually two things the brain does with sensory input (or emotional or cognitive input at a higher level). One is accomodation: the brain accomodates to the ambient qualities of the input as a means of adjusting to the environment. It can do this locally, as when two colors are juxtaposed and the perception of one affects the perception of the other, or it can do it globally, like when the eye adjusts to the level of light or darkness. In essence, it will take the edge off of perception, make it the norm. The other is sensitization: the brain can be put into various states of alertness and heightened perception when the input is amplified in some way over what it would be otherwise. A situation of perceived danger, for instance, will cause more sensory information to be processed, and parts of the brain have different states of activity, depending on a whole host of neurotransmitters, hormones, levels of blood flow, and the like. So there is, in essence no 'objective' view of reality, only the currently operative one. The same set of wavelengths in the same relative strengths, can be perceived as red, green, blue, or anything in between, given differing ambient and local conditions. And both by similar mechanisms, and by analogy, a person can perceive a situation like abusive treatment in many ways depending on the local (current) circumstances, or the global ambient (standard procedures, traditions, customs) circumstances.

The Detainee Substrate

The first substrate is the the designation detainee. It would seem that for the past some odd years, there has been a growing gap between the rights of a prisoner and the rights of a detainee. In fact, in the case of those held in our military prisons, the term detainee seems to be used to avoid the use of the term prisoner, an analog and perhaps an alternate set of vocabulary to calling people either prisoners of war or illegal enemy combatants. It would seem that what distinguishes a detainee from a prisoner is whether there has been a judgment that would imply that the person was being incarcerated as a punishment, or whether they are being 'held' for some reason. In the realm of the burgeoning military detention system that the Bush administration has built up as part of its 'war on terror', it is both: the term detainee is applied to people who are both being held without charge 'for the duration of conflict', and it is applied to indicate that they are not thought to be entitled to the rights of someone designated as a prisoner of war.

But this double use has also apparently been used in the immigration detention system. The term detainee there carries no original diminution of rights, really. There is no 3rd Geneva Convention to be shortened from its full length of protections to the third of a page known as Common Article 3. The people there have never been judged to have relinquished their rights under some criterion like that they weren't wearing uniforms or something, because they never were prisoners of war. They are, rather, immigrants who are awaiting immigration hearings: illegal immigrants awaiting deportations, or just people who have requested asylum who are waiting for their hearings. The title detainee invokes the same substrate as with the military prisoners, though. They are not given the rights that a prisoner convicted of a crime in America is given. Remarkably, Justice Scalia, defending the '24' brand of torture, and perhaps mulling the lethal injections case before the court, opined that the Constitutional protections against cruel and unusual punishment applied only to prisoners: to people who had been charged and convicted of crimes, and not before. The 'detainee' substrate satisfies all those who believe that only citizens should have Constitutional rights (not true), it satisfies all those who believe that there should be some prisoners that are entitled to less. In the 4 part series Careless Detention, by Dana Priest and Amy Goldstein in the Washington Post, it is possible to see just how little our government apparently believes detainees are entitled to. In some cases, they appear not to be entitled to medical care when they will die without it.

The Substrate of Violence

The next substrate is desensitization of the public and of public officials. Whether this is due to violence in life, or violence in the media, or violence in the movies or video games or whether it is just due to a growing insensitivity towards mistreatment, it is hard to tell. It is important, as a matter of the ambient level of abuse which leaves one disturbed. How many people can watch crime shows, movies, or thrillers, and react to a person of authority beating a suspect, or beating a prisoner, without much emotion? It is argued, I think reasonably, that the average person can tell the difference between fantasy and reality, but the stories in the news are media, not everyday life, and they may blend more easily into the backdrop of fictional acceptability than the same scene would if it were unfolding before a person in real life. In order for the public to get upset over images of torture on the TV, they have to shock when seen on TV not in real life. And that makes such desensitization more relevant.

Desensitization goes on very quickly when it appears that some abusive behavior is the norm. In the movie Standard Operating Procedure, Errol Morris subjects the audience to constant pictures of prisoners at Abu Ghraib, almost always naked, frequently restrained in stress positions, handcuffed to bed posts, to the bars of a cell, and intersperses these with what frequently sounds like reasonable explanations from the military police and the interrogators, who complain that things weren't right, but that they were told that that was the way things were done, and not to question. By the time people working for the prosecution begin tagging pictures as criminal or standard operating procedure, the viewer perhaps doesn't question the first S.O.P. designation, until one wrenches one's head out of the film context and says, "Wait a minute!" In point of fact, what is so characterized is not normal, and the viewer has had only an hour and a half of exposure to it to accommodate.

Desensitization to very powerful punishment techniques has gone on in our society for a long time. How many people would react with much surprise to the knowledge that a prisoner was being held in solitary confinement? We hear, or read, the term 'supermax' with reference to a prison, referring to something that is beyond maximum security confinement, but never think that it is a reference to solitary confinement, and probably would have little reaction if we knew that. But, as I have cited before, Stuart Grassian's testimony shows that solitary confinement is a deprivation that drives prisoners insane, and can permanently damage personalities and social interaction abilities. Desensitization to sleep deprivation is similar: All of us know the feeling of missing a night's sleep, either for work, for study, perhaps taking care of an infant or a sick child, perhaps on a wild night in one's past, or doing shelter ops during a disaster. It is hard to feel the fact that deprivation like that over a longer period, with sleep purposely interrupted, could disorganize the personality, and was so apparently cruel that people would do virtually anything to get sleep.

The Deprivation Substrate

Which brings us to the substrate that makes torture seem not that bad. This is the substrate of cruel, but passive, techniques that bring the prisoner's psyche to the breaking point, or beyond, without blood, or bruises, or scars. In Errol Morris' movie, a soldier sums up with the notion that what they were doing was just humiliation, what the OGAs (Other Government Agencies, usually CIA) were doing was the torture. At the point at which he says that, the viewer knows that prisoners have been beaten to death by the others, so one finds oneself nodding in agreement. Slapping inmates, humiliating them, playing loud music at them, it all seems so tame, and we are told it is -- what about those guys who pull fingernails out, or behead people, and so forth.

And that is the final triumph of substrates over reason. First there was the substrate that said, "This is a detainee, they don't deserve the rights we Americans do." Then there was the substrate that said, "I've seen the detective do worse on my favorite TV show." Then there was the substrate that said, "Solitary is legal punishment," and said, "Losing sleep, I lose sleep, it isn't that bad."

From the prisoner's point of view, the substrate is not an accomodation though, it's a sensitization. The lack of sleep, the solitary confinement, the constant humiliation, the fear. That's a substrate that has the prisoner's personality tipping constantly over the edge into madness and horror. And with that as a substrate, one slap, one barking dog, one session hooded standing on a box with wires attached to ones hands, is a huge shock to the mind. Peel away the substrate of the American onlooker, the accommodating one. Substitute the substrate that sensitizes, that makes everything a struggle to maintain one's sanity. That peeling away is what the American public needs to do. Without the accommodation, the plain light of day is too bright and hurts the eye. Without the sanity of the armchair view, sensitivity to physical or emotional pain robs the mind of its faculties. Arrange the substrates to dull the onlooker and sensitize the victim, and then those slaps become the worst possible evil: Torture that fails to shock the public conscience.

What's Wrong with this Argument?

2008-05-09T15:03:00.000-07:00

A Clarification

In his numerous articles, and presumably in his books on the subject, writer Sam Harris has argued fervently that if religion were not the cause of all brutality, crimes against humanity, and genocide, it is certainly a dominant factor. Together with this argument is usually coupled the idea that the rational approach of the sciences brings morality and an end to dehumanization.

I am thus willing to bet that my piece on the Albigensian Crusade would be eligible for citation as proof of the brutality of those in the sway of religion. I had quite a different impression in mind. The point of looking at the degeneration evident in moving from the early Catholic Church to the destruction of the Cathars, was, in fact, because of the parallel to the United States, not to blast some inherent evil of organized religion. It is the peculiar juxtaposition of power, message, and threats that is so unnervingly similar.

Like the United States, the Church starts with a revolution in its views of society, a new social compact, and a message to the world of that compact. Like the United States, the Church has the elements of this compact enshrined in a founding document, a document that embodies truths so basic to the message that it takes on a revered status. Like the United States, the Church rose to a position of great authority based on the perceived universality of that message for all mankind. Like the United States, the Church put in place bans on inhuman activity. Like the United States, within the Church, movements arose that harshly re-interpreted the 'original meaning' of the founding documents. Like the United States, the Church began to see itself as, to use a recently coined expression, a 'benevolent hegemony', that could impose its superior beliefs on those who it felt needed them by the exercise of its power. Like the United States, the Church then engaged in wars on its borders that it believed were existential in nature. Like the United States, the Church eventually started a war against an intangible, heresy, that led to retraction of many of the policies banning inhuman activity, and the descent into practices once deemed immoral and evil.

The doctrines that make up the founding and rise of the United States are not religious doctrines, nor is the Constitution a religious document. In fact, a good case could be made that the Founding Fathers were squarely in Sam Harris' camp, believers in the morality of the rational mind. But comparisons go both ways: In as much as the Church has later admitted that it descended into evil behavior that it has since recanted and repented, and which forever stains its past, so such a descent will do the same to the United States, if it continues to move in the direction of repudiating its earlier and fervent positions on human rights and against actions like torture. And it cannot be that dogmatism and dehumanization are the sole province of souring religious organizations if they occur and likewise sour secular organizations in the same way. The documents that I relied on to show the about face the Church made between the 7th and 12th centuries on torture were prepared by Catholics. They perceive the changes their church went through as a descent into the ways of the past, into the brutality of the Roman Empire, much the same way that we nervously compare the treatment at CIA Black Sites with the past, the gulags or the Spanish Inquisition.

I'm sorry. I would, as a scientist, love to believe that merely by educating everyone and training them in the methods of rational thought and inquiry that are embodied in science, we could rid the world of all brutality and inhumanity. I would love to think that somehow torture, the subject of this blog, would disappear through an agency as simple, albeit difficult to implement, as scientific or mathematical education. I have a lot to share in common with Mr. Harris, a fascination in the function of the brain, experimentation in the effects of meditation, even a distaste for the effects of those who would eliminate the separation of church and state in America, or would attempt to legislate the theory of evolution out of the minds of its children.

The Wrong Argument

But it isn't true. And one of the best examples of that is Sam Harris himself.

In his 2005 piece, In Defense of Torture, Mr. Harris begins by recounting the ticking bomb argument, pointing out that it can be re-sized to fit the morals of the most fervent doubter, adding 'embellishments' and dire consequences until it awakens, "the Grand Inquisitor in most of us." In his later defenses, specifically for this theory, he invokes the notion of 'thought experiments', which have sort of an elevated status in science after Einstein's theory of relativity. He mentions, "But realism is not the point of such thought experiments. The point is that unless you have an argument that rules out torture even in idealized cases, you don’t have a categorical argument against the use of torture." An argument of absolute immorality does that, and does it quite well. The Convention Against Torture says,

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

An order from a superior officer or a public authority may not be invoked as a justification of torture.

(Article 2, clauses 2 and 3). Why appeal to absolutism here? The principle, as elucidated last week before the House Judiciary Committee by Marjorie Cohn, is called jus cogens. It is that some rules of human behavior are so fundamental and basic, that they supercede all laws and treaties that would limit them. If such laws and treaties were formulated, they would be null and void for having done so. The things for which this principle applies are things like genocide, slavery, aggressive war, and, well, torture.

Such absolutism isn't obviated by a recourse to science, science is full of absolutes. To name a most basic one, nothing is fact unless it can be verified by a repeatable controlled experiment. To name another, much more 'controversial' in its scope (actually quite breathtaking in its implications) but never disputed, the Law of Parsimony: that the simplest theory that accounts for all the known relevant data, is not only the best (Occam's razor), it is also the Truth. Harris' own research is dominated by the belief that the BOLD activation signals in fMRI are mapping out the areas of the brain in which complex cognition is mediated, without knowing what the mechanisms of that cognition are, simply that whatever they are, they require the nutrition of increased blood flow. Most in his new field rely on the neuron hypothesis, and on other aspects of the past studies of the activity of neurons, that are anything but 100% sureties. I don't necessarily dispute any of the dogma in this paragraph, I just assert that science is not without its dogma.

His second argument, however is one that he believes has no refutation. He believes, and I will quote him at length,

In modern warfare, “collateral damage”—the maiming and killing innocent noncombatants—is unavoidable. And it will remain unavoidable for the foreseeable future. Collateral damage would be a problem even if our bombs were far “smarter” than they are now. It would also be a problem even if we resolved to fight only defensive wars. There is no escaping the fact that whenever we drop bombs, we drop them with the knowledge that some number of children will be blinded, disemboweled, paralyzed, orphaned, and killed by them.

The only way to rule out collateral damage would be to refuse to fight wars under any circumstances. As a foreign policy, this would leave us with something like the absolute pacifism of Gandhi. While pacifism in this form can constitute a direct confrontation with injustice (and requires considerable bravery), it is only applicable to a limited range of human conflicts. Where it is not applicable, it is seems flagrantly immoral. We would do well to reflect on Gandhi’s remedy for the Holocaust: he believed that the Jews should have committed mass suicide, because this “would have aroused the world and the people of Germany to Hitler’s violence.” We might wonder what a world full of pacifists would have done once it had grown “aroused”—commit suicide as well? There seems no question that if all the good people in the world adopted Gandhi’s ethics, the thugs would inherit the earth.
So we can now ask, if we are willing to act in a way that guarantees the misery and death of some considerable number of innocent children, why spare the rod with known terrorists? I find it genuinely bizarre that while the torture of Osama bin Laden himself could be expected to provoke convulsions of conscience among our leaders, the perfectly foreseeable (and therefore accepted) slaughter of children does not.

This argument is one of many moving parts. In essence, though, it is an argument against the laws of war in their entirety, since the same argument can be made as to all of the bans in the Geneva Conventions: torture, inhumane treatment, denial of a trial, aggressive warfare, you name it, can all pale in comparison to the horror of the massive destruction of war itself in at least some circumstances, especially if one allows justification by means of Gedanken like the embellished ticking bomb theory. So in essence, because the laws of war are incapable of banning war, they are not acceptable, since the war that is not banned are 'more immoral' than the crimes the laws ban.

The argument displays an astonishing ignorance of the underlying premises of the Geneva Conventions, that is, of the laws of war. When Henri Dunant and Gustav Moynier first convened meetings to hammer out the laws of war, their intent was to lessen the brutality of war, which they regarded, as Harris does, as inevitable. In that context, any ban on behaviors must be absolute: if it were not, it is inevitable that an excuse could be found, and quite quickly it turns out, for overriding it. Therefore, as rational a man as Mr. Harris pretends to be should be equally rational in understanding what kinds of prohibitions are and are not effective to carry out the mandate of the originators of the Geneva Conventions: to lessen the brutality of war. Were he to check, Mr. Harris would find that 'collateral damage' is defined as damage that could not be obviated, given the necessity of war, be it killing, injuring, or destroying property. Consequently, by definition, if all the damage is truly collateral damage, it is the best the combatants could do to minimize immorality given war. Any other damage, while it may be claimed to be collateral damage, is more than that.

Further, it is possible to move down the slope that Mr. Harris finds to be not slippery into justifying genocide. Here's the biggest possible ticking bomb theory: A scientific prediction that unless 4 billion less people inhabit the world by the end of the next five years, the planet will tend, with probability one, to a rapid warming that will diverge within 200 years to the climate of the planet Venus -- that is, all life on earth will be extinguished. Since nothing could possibly be as brutal and immoral as the total and permanent destruction of life itself, genocide now becomes the 'torture solution'. Hey, it's a thought experiment, its elements are, or were, all actually valid, only with all the numbers changed, just as the ticking bomb experiment changes the numbers to render an excuse for torture.

Harris then argues that torture should remain always illegal, but should be practiced when necessary. So apparently he does not really believe in the rule of law, either. Then his final "Harris Law of Torture" is that torture should never be practiced in any circumstances unless the prisoner is Osama bin Laden. After all his talk about how the excesses of Mao and Pol Pot can be seen as religious in nature and not atheist because they were personality cults, which are basically religions, he himself ends up believing in the personification of evil.

Somehow, perhaps, the psychologists devising tortures for the black sites, or the physicists who worked on the Manhattan Project, would have to fit Harris' characterization of 93% atheist, I would assume. They are, after all, as a result of being scientists, uncontaminated by the 'dogma of faith'.

Which I guess is why Robert Oppenheimer, relying on his own translation from Sanskrit, upon witnessing the very first atomic explosion, quoted the Bhagavad Gita (Lit. God's Song), saying "I am become death, the destroyer of worlds."

His core argument on religion is that only religion can produce the rigidity of thought and strong emotions necessary to dehumanize people sufficiently to kill or be cruel. His argument is that if there were another discipline that could do this, then because it can do this, it is therefore a religion. Rationality is the only way to avoid evil, therefore science is the antithesis of religion, and is always a force for the good. In essence: religion is the root of all evil because 'root of all evil' is the definition of religion. Science is the root of all good, because there are only two possibilities, and the other one is the root of all evil. (I would imagine that I am anathema to Harris).

His second argument is that because thought experiments are the basis for the theory of relativity, and the theory of relativity is science, they are a universal method of determining the truth, and need not be grounded in empirical data. True to form, the minute his situational ethics becomes divorced of any absolutes whatsoever, it immediately descends into approval of the very cruelty it purports to expunge. But then that would be one of the many consequences of the Stanford Prison Experiment, which is science, no?

Hegemony and Humility Don't Mix

How does one avoid this consequence? Perhaps by being a bit more humble. Instead of standing overlooking the Sea of Galilee imagining that one has mastered the destruction of self, and then going on to assert ones self as superiorly trained, one must in fact understand the shaman, as well as the Buddha. The shaman is capable of putting reality together in multiple ways, that is his/her distinguishing cognitive characteristic. That is another aspect of the spiritual, perhaps, one that, because of its intensely personal nature, its absolute requirement of belief without independent verification, is much more difficult to sterilize of its trappings and render as purely cognitive neuroscience in its essence. In small ways, this flexibility of perception led to developments in psychophysics and cognitive neuroscience too. But in its essence, the shaman phenomenon asserts that no one perceptual tradition would hold the supremacy of objectivity. That phenomenon is borne out in many experiments, not the least in experiments on inhumanity like the SPE. It therefore argues that concepts like jus cogens, like absolute prohibitions, like a ground level denial that torture can ever be the morally good behavior to practice, are just as valid as any thought experiment, and perhaps lead to a superior morality than elevating science as the next benign hegemony. Scientific inquiry, like the Constitution of the United States, like the Gospel of the Church, is after all, rooted itself in humility.

Depriving A Child

2008-05-05T15:57:00.000-07:00

A Busy Day?

Sometimes it's hard to know where to start. One hopes that this indicates that a national and even an international dialog on torture is gradually starting and gaining prominence. On Salon, Alex Koppelman notes an AP release that an Iraqi man, Emad al-Janabi, is suing two U.S. contractors for torture at Abu Ghraib in 2003. At least there will be some action that isn't being bottled up by military commissions, a reluctant Congress, or maybe just dull headed editorial boards. The Washington Post is attempting to come clean on their lack of torture reporting, they were among the major outlets that maintained a far less than noble silence on the NSC Principals story, in their case trying to claim that it had all been reported before.

In their editorial Coming Clean on Torture, they commend the Bush administration for announcing it will make documents available to select members of Congress. It's a little hard to understand how a major news organization with access to so much information could fall so flat on such an important issue. They want Congress to "communicate clearly to the administration their concerns..." and "vigorously press" the administration on its "long-running effort to circumvent the domestic anti-torture statute and the international Convention Against Torture." Weak tea for international crimes, no? Congress has both the right and the authority, and under the Convention Against Torture, the obligation, to investigate, prosecute, and punish those in the administration who have created systems for torture. Communicating concerns is not even close to being enough. But it appears, as well, that the Post has difficulties understanding the proscriptions against torture, somehow seeing circumstances that are "understandable, and at times even forgivable." For the record, the statutes the Washington Post cites do not posit any understandable or forgivable torture, and the editorial, perhaps an attempt to place the Post on the side of justice, falls instead as an apology for the indefensible.

More on Less

At the end of the last post, I spent a few paragraphs on sensory deprivation. I'd like to spend a few more, and consider the continuum that includes both cutting off the senses of sight and sound with goggles and earphones, and possibly in some cases the sense of touch with tubes around the arms or in isolation tanks, and the punishment known as solitary confinement, whether or not it is undertaken for long periods of time or short ones. I'd like to do that because of a particular prisoner. Democracy Now! is running an Amy Goodman interview with Michelle Shepard, called Guantanamo's Child: The Untold Story of Omar Khadr. The title is the title of a new book by Ms. Shepard on Omar Khadr, a Canadian of Egyptian-Canadian parents, who is both the youngest prisoner currently at Guantanamo, and will, apparently, become the youngest person to be tried before the Military Commissions, and the first person in modern history to be tried for war crimes committed as a child.

There's a lot that is wrong with the story. There are conflicting reports and testimony about whether or not Omar Khadr killed an American soldier in Afghanistan. Some of the attitudes are quite frankly surprising. Khadr gets no support from Canada, because his brother told Canadian press that "We are an al Qaeda family." His lawyers have argued that he should not be tried because the Convention on the Rights of the Child, and the Geneva Conventions Additional Protocols both ban such actions for minors. [Note: The U.S. did not ratify the Additional Protocols. Under the Vienna Conventions, which the U.S. also did not ratify, but which it cites as a codification of existing law of nations, a party that signs a protocol but does not ratify it is required to refrain from violations but not required to enforce it. Thus the U.S. should not violate the Additional Protocols.] And that doesn't get to the heart of it: A child, but one who was arguably acting as a combatant, is charged with the "war crime" of killing a soldier. The Khadr was in a building that was an obvious military target of U.S. forces (it was bombed), he was shot by soldiers there, and there is even a possibility that the soldier was in fact killed by friendly fire, clear indications that there was no concealment of a military role. In what sense is participating in a two sided firefight anything but an act of war? He is, instead, criminal because he is being considered not a combatant but a terrorist (also the argument as to why his minority status doesn't matter).

However, there is more. Omar Khadr was held in solitary confinement for periods of time, and was put in sensory deprivation during his transport from Bagram to Guantanamo. In 2003, he was put in solitary confinement for lengthy periods of time in 2003 and in 2004. He was examined several times by medical experts, and Rolling Stone documented in 2006 that Dr. Eric Turpin filed a report in November 2004 in which he stated, in part,

"The impact of these harsh interrogation techniques on an adolescent such as O.K., who also has been isolated for almost three years, is potentially catastrophic to his future development," Trupin stated in his report. "Long-term consequences of harsh interrogation techniques are both more pronounced for adolescents and more difficult to remediate or treat even after such interrogations are discontinued, particularly if the victim is uncertain as to whether they will resume. It is my opinion, to a reasonable scientific certainty, that O.K.'s continued subjection to the threat of physical and mental abuse places him at significant risk for future psychiatric deterioration, which may include irreversible psychiatric symptoms and disorders, such as a psychosis with treatment-resistant hallucinations, paranoid delusions and persistent self-harming attempts."

Indeed. The report cited in my previous post, on solitary confinement, by Stuart Grassian, notes a symptomology of solitary confinement that parallels, not surprisingly, that of full sensory deprivation, albeit a bit slower on onset. Not much, however. There were student experimental subjects experiencing the first effects of solitary confinement after periods of a day or two in the Stanford Prison Experiment (Philip Zimbardo, The Lucifer Effect). The effects he cites, include (p.13),

The restriction of environmental stimulation and social isolation associated with confinement in solitary are strikingly toxic to mental functioning, producing a stuporous condition associated with perceptual and cognitive impairment and affective disturbances. In more severe cases, in mates so confined have developed florid delirium - a confusional psychosis with intense agitation, fearfulness, and disorganization. But even those inmate who are more psychologically resilient inevitably suffer severe psychological pain as a result of such confinement, especially when the confinement is prolonged, and especially when the individual experiences this confinement as being the product of an arbitrary exercise of power and intimidation. Moreover, the harm caused by such confinement may result in prolonged or permanent psychiatric disability, including impairments which may seriously reduce the inmate's capacity to reintegrate into the broader community upon release from prison.

Dr. Grassian also notes that the symptoms are etiologically strikingly similar to organic brain dysfunction, particularly to delirium, and that the combination of symptoms associated with profound solitary confinement and sensory deprivation are rare otherwise (p. 5). He notes that the long term lasting effects, aside from social impairments (Anti-Social Personality Disorder), include PTSD.

But what about the fact that Khadr underwent these harsh treatments as a minor? Recently, there has been much talk about the adolescent brain not being as fully formed as an adult's, much later into adolescence than previously believed. Although there are disputes about this, there is some research to indicate that crucial wiring operations are going on into adolescence and are interrupted by sensory deprivation. So for someone who is not an adult, there is the potential for much more serious damage to brain function, as Dr. Turpin mentioned.

Consider this: A brain is a functioning organ of the human body that is necessary for life, sensation, locomotion, thought, and personality. If it's wiring is permanently impaired, if it is subjected to insult that creates symptoms consistent with neurological central nervous system dysfunction, if that is exacerbated when the victim is a child, then no matter what the restrictive definition of torture adopted by the Bush administration Office of Legal Council, even that written by John Yoo in 2002, what Omar Khadr underwent, even without the subjection to pain, humiliation and threats he endured, caused a quite likely permanent damage to an organ of his body. Is this the kind of pain consistent with "major organ failure"? Maybe we should ask Professor Yoo.

One Final Note

A commenter on the previous post noted that June 26 is the U.N. Day Against Torture. Specifically, it is the anniversary of the entering into force of the U.N. Convention Against Torture. There is a notice about activities for that day on the IRCT website. No one should lose site of the fact that all torture should end, that practiced by the U.S. and that practiced by others. But it would be nice if by that time, Congress had begun their investigations in earnest on the U.S. transgressions. Thank you, to the anonymous poster.

Torture in Three Words

2008-05-03T08:18:00.000-07:00

When one thinks about torture, one gets images of waterboarding, or if more medieval, one thinks of burning pokers, or the rack. Since an outburst on British TV by Antonin Scalia, the commenters on message boards and blogs who agree with him are now weightily intoning about the necessity for bamboo spikes below the fingernails.

He gets this kind of imagery from many sources, high among them Alan Dershowitz (on the fingernails), and the program '24' on most of the rest. Scalia is known to have cited '24' in interviews as examples for supporting various versions of the ticking bomb theory. The reality is somewhat different, and techniques like common peroneal strikes, shaking, slapping, and waterboarding would make up the majority of the techniques in any thriller, since the bomb needs to be just a few minutes from exploding all the time, so the techniques need to be loud, violent, and quick, degradation, humiliation, stress, and deprivation are the words that really keep resurfacing more often. Of course, it's hard to say something like,

If there were a bomb somewhere in Los Angeles that was going to go off within the next two months, and you knew that one of these ten thousand men knew something about the finances used to pay the man who set up the cell to build it two years ago, I don't think anybody would find keeping all of them in the nude in dark cells with no contact with the outside, waking them every two hours, and making them wear women's underwear on their heads to be prohibited by the constitution. It would be absurd to say you couldn't do that. (Paraphrase of Scalia's comments with the real interrogation scenario superimposed).

In their article about Scalia's interview, Professor Conor Gearty states this, "Antonin Scalia works hard to protect himself from having to think seriously about torture. His devices are quite obvious, the idea of a smack on the face - rather than sensory deprivation, or waterboarding or any of the Abu Ghraib images - and the comment about 'so-called torture'..."

And that has been the dynamic all along. From interviews like these, by Scalia and Dershowitz, to shows like '24', to public statements by the Bush administration, to memoranda generated by the OLC, and even required testimony before the U.N. Committee on Torture, while looking furiously through the Constitution and the Geneva Conventions, and the Convention Against Torture for loopholes through which to drive torture, the public front has all been about the quick and the violent, a movie scenario, a few minutes pain wrought on an undeserving terrorist that saves millions of lives in an instant. And there are only three words in the Torture act that prevent them from arguing successfully any technique that isn't like the movie scenario isn't the intent of these laws and conventions. Like Scalia's statement that "cruel and unusual punishment" in the Constitution refers only to the punishment of a person after conviction for a crime, not to intelligence, they parse through the text attempting to create the "narrow" definition of torture, and parse through the ratification documents looking for "intent" to narrow the definition, and even claim that the Torture Convention may not be applicable in Afghanistan, Iraq, and Guantanamo, because the applicable law is the Geneva Conventions, since they are fighting a war.

Those Three Words

The operative two words in the Torture Act, are the words, "or other procedures." Otherwise, no matter how severe and prolonged the mental pain or suffering inflicted, the current U.S. position in implementation, from a December 2004 memorandum of the OLC, written by Acting Assistant Attorney General, OLC, Daniel Levin to replace the infamous "Torture Memo", the favorite techniques of breaking prisoners would never amount to torture. Never mind that they argue to the U.N. Committee the opposite, that U.S. law merely makes fine distinctions to be more easily implemented, and really covers the broad scope covered by the Article 1 definition in the Convention Against Torture. U.S. policy is that if the prolonged mental pain and suffering created by U.S. interrogation or incarceration are not the product of exactly the 4 causes in the Torture Act, and whichever of those 4 causes was applied specifically to produce the prolonged mental pain and suffering, then regardless of what has been done to the prisoner, it is not torture. This is no exaggeration, it is fact. And it may be the origin of all the professions out of the Bush administration that the "U.S. does not torture."

Solitary confinement and sensory deprivation, especially when combined with sleep deprivation, are not matters of severe physical pain and suffering, in and of themselves. There is no application of drugs, and, now that the work in the 1950's is complete, no experimentation on victims. There need be no threats of death. And there may not be any threats to any relative, or other prisoner, or any third party. So the only way that these techniques qualify under the Levin Torture Memo, is that they are "other procedures" calculated to profoundly disrupt the senses or the personality. Whether or not they qualify under the "specific intent" arguments in that memo is a good question. After all, as documented by NPR, solitary confinement far exceeding what is proscribed by the Convention Against Torture or the Geneva Conventions is quite common in U.S. prisons. And sensory deprivation devices, mostly isolation tanks, are widely available for 'meditation' and apparently as almost recreational devices, on the internet. And most workers at start-up companies would probably boast about their sleep deprivation. Since Levin's memo requires that torture be something quite "extreme", as in "universally and categorically condemned." When the U.N. Committee on Torture complained that this was not the intent of the Convention, the U.S. delegation explained,

Mr. Mariño Menendez had asked why the United States had limited torture to "extremely severe" pain or suffering. They had not done that. In its criminal statute for the extraterritorial offence of torture, the United States had utilized the term "extreme" as a synonym for the term "severe". It did not use the term "extremely severe".

With respect to the question about the United States understanding defining the term "severe mental pain or suffering" in Article 1, that understanding had recited elements implicit in the text to provide the specificity needed to meet the requirements of a criminal statute. There had been no intent to limit the scope of Article 1.

Sensory Deprivation

Then what is the U.S. position on these techniques? Maybe a photograph would be helpful. Obviously, since this is an image in the public domain, courtesy of the U.S. Navy, it doesn't fit the bill for torture.

Sensory deprivation was developed by the Soviets, it is believed, during Stalin's regime. The U.S., Canada, and Britain became interested in it in the 1950's, and studies were done in all three places, by such well known names in neuroscience and psychology as Donald Hebb and John C. Lilly. In Hebb's case, the experiments were done in a fashion not too different from what is shown in the photograph in some respects: The subjects were put in rooms by themselves, told not to talk, the rooms were silent, and they wore blurry goggles that kept their sense of vision from functioning. "Despite the concessionary factors several of the volunteers began to have experiences of unusual visual and auditory hallucinations. Many found themselves unable to
distinguish between the waking and sleep stage."

John Lilly's experiments were more famous, especially after the publication of his book The Center of the Cyclone in the 1970's, and the device he created was known as an isolation tank. It was famously depicted in the movie Altered States, in which the hallucinations within the tank, when combined with the right Mexican brujo magic, produce real results. Many researchers investigated the tanks for use in meditation, and it is these that are sold on the internet, and that one finds when searching the term "sensory deprivation". For his research subjects,

Under total silence and lack of any stimulation the subjects were unable to concentrate, and in some cases developed mental disturbances. The maximum time a volunteer could tolerate these conditions was only three hours. The volunteers reported feelings of unreality and tremendous loss of identification.

They did not know where they were, or who they were, or what was happening to them. Due to this enormous mental pressure most of them abandoned the experiment.

But what if it goes on for more than three hours? What if solitary confinement goes on for long periods of time? What if the sleep deprivation continues along with the sensory deprivation? The NPR documentary carries an interview with an American former prisoner who was in solitary confinement for 18 years. He has significant social problems that have persisted beyond his confinement. In the case of prisoners at Guantanamo and elsewhere, the techniques have produced hallucinations and psychosis, according to Mark Benjamin's excellent article, The CIA's favorite form of torture. In the case of the Stanford Prison Experiment, subjects screened for "normalcy" before the experiment experienced breakdowns after confinement in isolation (without light) and sleep deprivation, in a matter of days (Philip Zimbardo, The Lucifer Effect).

Like many other aspects of society and our lives on this planet, when something takes time, and is a slow degradation or descent into madness, it doesn't register. When it so closely resembles accepted parts of the social framework, solitary confinement in prison, for example, it diminishes the impact of learning that a tactic has been used on ordinary citizens. Because that framework exists, natural cognitive processes that eliminate the painfulness of the image get right to work rationalizing the behavior. And when it resembles a form of recreation, or a situation that people all keep in memory, as in the isolation tanks, or the all-nighters from school or work, people then dismiss the technique as nothing more than the amalgamation of normal behaviors.

And so people like Antonin Scalia and Alan Dershowitz make sense to some, and are taken as experts. And people like Stuart Grassian, a genuine expert in solitary confinement and sensory deprivation, do not get cited in the news. And a treatment that is perhaps the most diabolical of all of the abusive treatments making up the list of "enhanced interrogations", takes a back row seat to quick, painful, and violent techniques -- that fit in well in the movies and on TV.

A Low Bar for Heroes

2008-04-30T12:32:00.000-07:00

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.

Context and Ambiguity

2008-04-28T09:37:00.000-07:00

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?

Pouring and Forcing

2008-04-25T09:24:00.000-07:00

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.