Stop Solitary Confinement

This eloquent video says it all.

Torture In Your Own Backyard

Cell Block D, Alcatraz

If Dostoevsky was right, that "the degree of civilization in a society can be judged by entering its prisons," the United States has ceased to be civilized. When a country imprisons more than 2 million people, and when it manages to be torturing more than 20,000 of those prisoners through long term solitary confinement, something is wrong. Very, very wrong. And remarkably, the torture is thoroughly overlooked.

Torturing? Yes. Not waterboarding. Not stress positions. No. I’m talking about long term, unrelenting solitary confinement. Solitary confinement not for days, but for years, even for decades. Solitary confinement that literally drives prisoners crazy. Solitary confinement that is torture plain and simple.

Join me in Special Housing.

As early as 1890, the US Supreme Court recognized the pernicious effects of solitary confinement. Justice Miller wrote In Re Medley, 134 U.S. 1 60 (1890):

A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.

So we're not dealing with forecasts here. It was clear a century ago that solitary confinement was cruel, that it was hurtful, and that it would absolutely ruin the mental health of a person who was confined. These were not theoretical predictions of the results of solitary confinement; these were reported observations.

In 1934 the US Government opened Alcatraz to hold the worst of US, federal prisoners. NPR explained what solitary confinement at Alcatraz's D block (pictured above) was like:

Most inmates spend many hours outside in the yard and on required work details. But a few dozen are kept in "D Block," the prison’s solitary-confinement hallway. One cell in particular is called "The Hole" -- a room of bare concrete except for a hole in the floor. There is no light, inmates are kept naked, and bread and water is shoved through a small hole in the door. Although most inmates only spend a few days in the hole, some spend years on D Block. Conditions are better than in The Hole -- inmates have clothes and food -- but they are not permitted contact with other inmates and are rarely let out of their cells. The most famous inmate on D Block is Robert Stroud, known as the "Birdman of Alcatraz,” who spends six years there.

It's not a long jump from Alcatraz to the present. In 2005, Daniel P. Mears, an associate professor at Florida State University, conducted a nationwide study(big file, pdf) and found that there were then 40 states operating Supermax or control-unit prisons, which collectively hold more than 25,000 U.S. prisoners, in solitary confinement. This is a huge population. And every single person in it is being given the same toxic, dangerous, tortuous treatment.

What's it like to be incarcerated in such a place? It’s not much different now from how it was more than 75 years ago at Alcatraz. In Beard v. Banks, 548 U.S. 521 (2006) the US Supreme Court described Pennsylvania’s Long Term Segregation Units (LTSU), the current prison lingo for solitary confinement:

The LTSU is divided into two levels. All inmates are initially assigned to the most restrictive level, level 2. After 90 days, depending upon an inmate's behavior, an individual may graduate to the less restrictive level 1, although in practice most do not. ...

The [3 units] all seriously restrict inmates' ordinary prison privileges. At all three units, residents are typically confined to cells for 23 hours a day, have limited access to the commissary or outside visitors, and (with the exception of some phases of the SMU) may not watch television or listen to the radio...

Prisoners at level 2 of the LTSU face the most severe form of the restrictions listed above. They have no access to the commissary, they may have only one visitor per month (an immediate family member), and they are not allowed phone calls except in emergencies... In addition they (unlike all other prisoners in the Commonwealth) are restricted in the manner at issue here: They have no access to newspapers, magazines, or personal photographs.... They are nonetheless permitted legal and personal correspondence, religious and legal materials, two library books, and writing paper... If an inmate progresses to level 1, he enjoys somewhat less severe restrictions, including the right to receive one newspaper and five magazines... The ban on photographs is not lifted unless a prisoner progresses out of the LTSU altogether...

Is holding someone for a long period of time in these conditions torture? If that’s not already clear, it is. In a March, 2009 New Yorker article, Atul Gawande effectively argues that destroying people’s mental health through prolonged solitary confinement is torture plain and simple. Gawande note the evidence that solitary confinement drives prisoners into insanity:

It is unclear how many prisoners in solitary confinement become psychotic. Stuart Grassian, a Boston psychiatrist, has interviewed more than two hundred prisoners in solitary confinement. In one in-depth study, prepared for a legal challenge of prisoner-isolation practices, he concluded that about a third developed acute psychosis with hallucinations. The markers of vulnerability that he observed in his interviews were signs of cognitive dysfunction—a history of seizures, serious mental illness, mental retardation, illiteracy, or... a diagnosis such as attention-deficit hyperactivity disorder, signalling difficulty with impulse control. In the prisoners Grassian saw, about a third had these vulnerabilities, and these were the prisoners whom solitary confinement had made psychotic. They were simply not cognitively equipped to endure it without mental breakdowns.

You can, of course, read Grassian’s Report (pdf).

To be clear, driving prisoners insane through long term solitary confinement is torture.

In 2000, and again in 2006, the United Nations Committee Against Torture condemned the kind of isolation imposed by the U.S. government in federal, state and county-run supermax prisons, calling it "extremely harsh." "The committee is concerned about the prolonged isolation periods detainees are subjected to," they stated, "the effect such treatment has on their mental health, and that its purpose may be retribution, in which case it would constitute cruel, inhuman or degrading treatment or punishment."

source

The usual “justifications” for solitary confinement cannot bear scrutiny. As Gawande writes,

The main argument for using long-term isolation in prisons is that it provides discipline and prevents violence. When inmates refuse to follow the rules—when they escape, deal drugs, or attack other inmates and corrections officers—wardens must be able to punish and contain the misconduct. Presumably, less stringent measures haven’t worked, or the behavior would not have occurred. And it’s legitimate to incapacitate violent aggressors for the safety of others. So, advocates say, isolation is a necessary evil, and those who don’t recognize this are dangerously naïve.

The argument makes intuitive sense. If the worst of the worst are removed from the general prison population and put in isolation, you’d expect there to be markedly fewer inmate shankings and attacks on corrections officers. But the evidence doesn’t bear this out. Perhaps the most careful inquiry into whether supermax prisons decrease violence and disorder was a 2003 analysis examining the experience in three states—Arizona, Illinois, and Minnesota—following the opening of their supermax prisons. The study found that levels of inmate-on-inmate violence were unchanged, and that levels of inmate-on-staff violence changed unpredictably, rising in Arizona, falling in Illinois, and holding steady in Minnesota.

And there are available, effective alternatives to solitary confinement. Gawande writes:

So the British decided to give their most dangerous prisoners more control, rather than less. They reduced isolation and offered them opportunities for work, education, and special programming to increase social ties and skills. The prisoners were housed in small, stable units of fewer than ten people in individual cells, to avoid conditions of social chaos and unpredictability. In these reformed “Close Supervision Centres,” prisoners could receive mental-health treatment and earn rights for more exercise, more phone calls, “contact visits,” and even access to cooking facilities. They were allowed to air grievances. And the government set up an independent body of inspectors to track the results and enable adjustments based on the data.

The results have been impressive. The use of long-term isolation in England is now negligible. In all of England, there are now fewer prisoners in “extreme custody” than there are in the state of Maine. And the other countries of Europe have, with a similar focus on small units and violence prevention, achieved a similar outcome.

One would think that with 25,000 people in solitary confinement there would be a gigantic tidal wave of litigation about the subject. But that hasn’t happened. I can offer a few reasons for this.

First, the US Supreme Court has since Turner v. Safley, 482 U.S. 78 (1987), given great, uncritical deference to prison administrator’s opinions about how their prisons should be run. You will note that it is their prison, not yours. This means in practical terms that the warden’s assertion that some people are so dangerous that they need to be in solitary confinement so that the prison can function, will be accepted, and contrary opinions and innovations will be rejected.

Second, the prison industrial complex has been booming for decades because of the excessive number of people confined in the US and the desire to isolate prisoners, something that requires more prisons and more guards and more administration and more spending.

Third, the Courts, even when confronted with massive, proven injuries caused by solitary confinement in a Supermax prison, have rendered themselves unwilling to intercede and powerless. In Madrid v. Gomez a federal judge found conditions at Pelican Bay Prison in California "may well hover on the edge of what is humanly tolerable. But, and this is the important but he ruled that there was no constitutional basis for the courts to shut down the unit or substantially to alter it. The Court had to defer to the state’s views about how to treat prisoners.

Prisoners, of course, don’t have any power to change these conditions. They have no money. They are routinely excluded from voting. They don’t have an alumni association. Prisoners’ families are mostly poor and disenfranchised. Prisoners cannot change these conditions.

And we? The prison’s walls keep the prisoners in, but they also keep us out. We don't know what's going on. We might not even care. We really need to have a serious discussion about what is going on behind the walls in our names. But we haven’t managed so far even to start that dialogue. That's a pity.

Covering Up Torture By Coercing Guilty Pleas

According to the New York Times, the Obama Administration may modify the military commission rules to permit require have Gitmo prisoners plead guilty and be executed:

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques. It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom.

The proposal, in a draft of legislation that would be submitted to Congress, has not been publicly disclosed. It was circulated to officials under restrictions requiring secrecy. People who have read or been briefed on it said it had been presented to Defense Secretary Robert M. Gates by an administration task force on detention.

The proposal would ease what has come to be recognized as the government’s difficult task of prosecuting men who have confessed to terrorism but whose cases present challenges. Much of the evidence against the men accused in the Sept. 11 case, as well as against other detainees, is believed to have come from confessions they gave during intense interrogations at secret C.I.A. prisons. In any proceeding, the reliability of those statements would be challenged, making trials difficult and drawing new political pressure over detainee treatment.

How, you might want to know, does dispensing with a full, albeit difficult trial for prosecutors and avoiding inquiries about extensive torture benefit the detainees? How does it assure that their guilty pleas are knowing, intelligent, and voluntary? Doesn't dispensing with the requirement of any proof after years and years of confinement make the eventual killing of these prisoners even more egregious?

Think about it. The prisoners in Gitmo have been held for about seven years. They have not received a speedy trial. In fact, many haven't received any process at all. And while they've been confined there's been a worldwide uproar over their detention without trial and the conditions of confinement and their being tortured and the potential show trials conducted by military commissions and the utter lack of due process in these show trials and their having no real access to US Courts. These are all obvious problems. And now, added to these problems and not resolving them in any regard, we have the distinct possibility that prisoners will "volunteer" for death by pleading guilty, and we will have no way at all of knowing that they committed the acts for which they will be killed or that their confessions were truthful or even that their guilty pleas are minimally voluntary. Hence, the headline: guilty pleas coerced by torture, long term isolation, and desperation, will cover up the torture and the conditions of confinement. The prisoners, we are told, want to be martyrs, and they will be. The US, we are told, doesn't want to discuss their torture or how they got to Gitmo or what it's been like for them in confinement, and the US won't have to. It's a win-win.

Can someone who is held for seven years without procedural due process, who is tortured, who is in harsh conditions of confinement enter a knowing, voluntary, intelligent guilty plea? Theoretically, I suppose it is possible. But it's going to take a lot more than the accused's answering "yes" to a standard Rule 11 allocution (what you have to say "yes" to to enter a guilty plea in a federal criminal case) to convince me or anyone else who is watching that the plea is voluntary in any conventional sense. That's why in the Military Justice System, you cannot plead guilty to a capital crime. As the Times tells us, "to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty."

Lawyers who were asked about the administration’s proposed change in recent days said it appeared to be intended for the Sept. 11 case.

“They are trying to give the 9/11 guys what they want: let them plead guilty and get the death penalty and not have to have a trial,” said Maj. David J. R. Frakt of the Air Force, a Guantánamo defense lawyer... snip

Cmdr. Suzanne M. Lachelier, a Navy lawyer for one of the detainees in the Sept. 11 case, Ramzi Bin al-Shibh, said of the Obama administration, “They’re encouraging martyrdom.”

The administration has not announced whether it will continue with the Sept. 11 case in the military commissions or charge some of the men in federal court. Officials involved in the process said that lawyers reviewing the case have said that federal-court charges against four of the men might be possible, but that the evidence might be too weak for a federal court case against one of the five, Walid Bin Attash, a veteran jihad fighter who was known as Khallad.

Usually, when "the evidence might be too weak for a federal court case" the prosecution recognizes that it cannot meet its burden of proof and it dismisses the charges. If the prosecution doesn't dismiss the charges, it's up to a jury or a judge to find the accused not guilty. And then? And then the accused goes free. Not so in Gitmo. Evidently in Gitmo, somebody who might be released because the case is "too weak for a federal court case" instead gets to plead guilty and be executed.

And to think that I was worried that those with weak cases would be "preventively detained" forever and ever. Even that would be better than coerced guilty pleas followed by execution.

Epistle To the Bloguer@s From A Traveler

Querido Amig@s en la Blogosfera,
In 1999 I was traveling in India when Columbine happened. Everywhere I went, and I went to some pretty remote places, people I met, well at least those who had televisions, wanted to know one thing. That one thing, loosely translated, is WTF is wrong with the US anyway? What kind of crazy batshit country produces these kinds of homicidal maniacs? And why? I didn't have a good answer. If we had a few beers or got to know each other a little, I would might have a chance to begin to try to explain it, but I couldn't. And that's not because I'm inarticulate. It's because there is no satisfactory answer.

And now this. Tuesday I'm traveling to Ireland. And you know what? Everywhere I go, and I will go to some pretty rural places, people I meet will want to know one thing. That one thing, loosely translated, is WTF is wrong with the US anyway? What kind of crazyland country has black sites, extralegal extraditions, Gitmo, Bagram, waterboarding, torture, Abu Ghraib AND, and this is the important AND, AND announces that nothing should be done about those who tortured or ordered torture or wrote bogus "legal" memos to justify torture? And what kind of country that does all of that has the chutzpah (that is a revered Irish word) to lecture other countries about human rights? Isn't that against the law in the US, to torture prisoners? Isn't that against International Law, to torture prisoners, and then also to fail or refuse to prosecute the torturers? Isn't that what the US prosecuted various Japanese soldiers for about 60 years ago? Didn't the US say that the excuse of "just following orders" just wasn't good enough to keep you from hanging? Trust me on this. On Tuesday evening, when I am sitting comfortably in a pub in Dublin, bemused by my good fortune and friendships, slowly working my way out of jet lag and into a reverie about James Joyce and looking greedily at the bottom of a pint, somebody will smile and ask me the question. And, of course, I don't have a good answer. How could I? I'm not inarticulate. I will buy a round from time to time. But for heaven's sake, WTF am I supposed to say about this? There really isn't a satisfactory answer.

Well, Mr. My Friend, I could begin, that's quite a question you're asking me. I'm as enraged and unhappy about this as anyone, well, almost anyone. I'm not nearly as enraged and unhappy as the people who were tortured or their families, but aside from them. I haven't got a f*cking clue why immunity or lack of action this was so prominently announced, and while we're at it, I have no idea WTF you or I or anybody else can do about it at this point other than raise a ruckus. Not at all. And, Mr. My Friend, a first step toward making a ruckus is that you really need to visit the torture petitions and sign them, one and all. And then, and only after yo do that, let's have another pint and see what kind of ruckus we can create.

Your pal,
davidseth

Prosecute! Prosecute! Prosecute!

Torture: The Need To Prosecute

Yesterday, while I was driving to court, I heard on NPR that the "torture memos" had been redacted and released, and to my amazement, that Barack Obama had announced that the actual torturers would not be prosecuted. I thought I misunderstood the radio.

This morning I see that I didn't misunderstand anything. The New York Times reports:

The Justice Department on Thursday made public detailed memos describing brutal interrogation techniques used by the Central Intelligence Agency, as President Obama sought to reassure the agency that the C.I.A. operatives involved would not be prosecuted.

In dozens of pages of dispassionate legal prose, the methods approved by the Bush administration for extracting information from senior operatives of Al Qaeda are spelled out in careful detail — like keeping detainees awake for up to 11 straight days, placing them in a dark, cramped box or putting insects into the box to exploit their fears.

I'm more interested in the "would not be prosecuted part" than the bugs in a box, crazed dogs, waterboarding, sleep deprivation, slamming naked people into walls part. The latter aren't really news, nor are the legal contortions, sophistry, and nonsense that the memos have invoked to define these actions as "not torture" and/or to justify their use. No, the part that didn't register was the announcement of prosecutorial immunity for people who followed what are plainly illegal orders to torture. That is the part that inflames.

Mr. Obama condemned what he called a “dark and painful chapter in our history” and said that the interrogation techniques would never be used again. But he also repeated his opposition to a lengthy inquiry into the program, saying that “nothing will be gained by spending our time and energy laying blame for the past.”

Mr. Obama said that C.I.A. officers who were acting on the Justice Department’s legal advice would not be prosecuted, but he left open the possibility that anyone who acted without legal authorization could still face criminal penalties. He did not address whether lawyers who authorized the use of the interrogation techniques should face some kind of penalty.

With all due respect to Obama, I don't think we need "a lengthy inquiry" and a "laying of blame" for torture. Not at all. What we need are prosecutions of people who tortured. As the Times points out, "The United States prosecuted some Japanese interrogators at war crimes trials after World War II for waterboarding and other methods detailed in the memos." And we need prosecutions of lawyers who wrote bogus memos authorizing and approving torture. And we need prosecutions of people who, knowing that the memos were nonsense, solicited, importuned, commanded, advised, and ordered others to torture. US officials tortured. If it's true that the US does not torture, there have to be consequences for torturing. Prosecutorial immunity is not a consequence for violating the law and human rights.

Further, as I wrote last night, there was no reason for an announcement that there would be no prosecutions of torturers. The memos had to be released because yesterday was the deadline in the ACLU's suit under the Freedom of Information Law for their release. There was nothing about releasing the documents that required a spontaneous grant of prosecutorial immunity to anybody. In fact, far to the contrary. Why didn't Obama just release the memos, and wait for the low level interrogators to come running to his office to say who ordered what and when? Unless, of course, the reason for the statement was to protect all of those up the chain of command.

I understand full well that the CIA opposed the release of the documents. I understand that "Leon E. Panetta, the C.I.A. director, had argued that revealing such information set a dangerous precedent for future disclosures of intelligence sources and methods." That's all very nice. But the tail doesn't wag the dog. The assertion that CIA morale and esprit d'corps require the shielding of those who torture from prosecution is a chilling one that simply should not be countenanced.

Other than making a ruckus across the Internet, something that has not yet happened yet, I can suggest only that those who find this grant of immunity as disgusting as I do sign the ACLU petition and the democrats.com one calling for prosecutions.

Miss Universe Visits Gitmo!

You cannot make this stuff up. I wasn't sure whether I was reading the Onion or the New York Times. Sadly, it was the Times. A very brief excerpt (you need to read the whole thing to understand that the Apocalypse has finally arrived):

... the latest entry on the blog of the reigning Miss Universe, Dayana Mendoza, has a sort of eye-catching dateline: “March 27, 2009, Guantánamo Bay.”

According to the Web site of the U.S.O., which arranged the visit, the Miss Universe Organization made the decision to “deploy Crystle Stewart, Miss U.S.A. 2008, and Dayana Mendoza, Miss Universe 2008, to Guantánamo Bay, Cuba, to visit troops as part of a U.S.O./Armed Forces Entertainment tour.”

Ms. Mendoza, who competed as Miss Venezuela, has a blog on the pageant’s Web site, and this account of the visit appeared there last Friday, after her deployment:

This week, Guantánamo!!! It was an incredible experience.

We arrived in Gitmo on Friday and stared (sic) going around the town, everybody knew Crystle and I were coming so the first thing we did was attend a big lunch and then we visited one of the bars they have in the base. We talked about Gitmo and what is was like living there. The next days we had a wonderful time, this truly was a memorable trip! We hung out with the guys from the East Coast and they showed us the boat inside and out, how they work and what they do, we took a ride around the land and it was a loooot of fun!

We also met the Military dogs, and they did a very nice demonstration of their skills. All the guys from the Army were amazing with us.

We visited the Detainees camps and we saw the jails, where they shower, how the recreate themselves with movies, classes of art, books. It was very interesting.

"We visited the Detainees camps?" Oh, we didn't get to see waterboarding, or stress positions, and those Military dogs, we didn't get to see them threaten to bite the detainees. No. The dogs showed us how, just by their showing up, grown men quaked in fear.

Yes. Gitmo sure is a loooot of fun!!

The Finger Wags And Moves On

I'm afraid that, when all is said and done, I don't understand blog reactions and what makes something a big story on blogs and in the traditional media. And no, I'm not complaining about the response to my eight pieces about the federal death penalty or how many people signed the petition. This isn't about me. Not at all.

It's about something astonishing. Now appearing on the recommended list of docuDharma is a piece by Valtin, US-UK Torture Cover-up, While Conditions Worsen at Guantanamo (Updated). It's about the rendition and imprisonment and yes, torture, of Binyam Mohamed and the suppression of information in his UK legal case. It's extremely important to read the entire essay.

In the essay, I find alarming items about torture:

The 25 lines edited out of the court papers contained details of how Mr Mohamed's genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, "is very far down the list of things they did," the official said.

This statement was in the original essay before it was updated and it remains there. When the essay was cross-posted at at GOS, I wrote as a comment in response to the quote:

How in the world can you have this line in a diary and have the diary receive as of this writing 21 comments and 27 recommendations? I don't get it. Why isn't this story all over dKos? Why isn't there a ruckus about it?

Maybe somebody can enlighten me.

The GOS diary ultimately received a total of 34 comments and 47 recommendations. It should have been on the recommended list and it should have had 1,000 indignant comments and recommendation. But, alas, it didn't.

I cannot understand or accept that.

When the diary was updated here at dd, it contained further information from Reprieve, a UK human rights group, about the torture of Binyam Mohamed:

On 21 July 2002, Binyam was rendered to Morocco on a CIA plane. He was held there for 18 months in appalling conditions. To ensure his confession, his Moroccan captors tortured him, stripping him naked and cutting him with a scalpel on his chest and penis. ...snip

Binyam's ordeal in Morocco continued for about 18 months until January 2004, when he was transferred to the 'Dark Prison' near Kabul, Afghanistan, a secret prison run by the CIA, which resembled a medieval dungeon with the addition of extremely loud 24-hour music and noise.

Speaking of his time in the 'Dark Prison', Binyam said:

"It was pitch black, no lights on in the rooms for most of the time. They hung me up for two days. My legs had swollen. My wrists and hands had gone numb. There was loud music, Slim Shady [by Eminem] and Dr. Dre for 20 days. Then they changed the sounds to horrible ghost laughter and Halloween sounds. At one point, I was chained to the rails for a fortnight. The CIA worked on people, including me, day and night. Plenty lost their minds. I could hear people knocking their heads against the walls and the doors, screaming their heads off."

From there he was taken to the US military prison at Bagram airbase, and finally, in September 2004, to Guantánamo Bay, where he remains.

This is a report of horrific, brutal, barbaric, illegal treatment. There cannot be any debate about whether this is or is not torture. It's torture plain and simple.

Yet, I don't see the ruckus about it. I don't see it breaking through in the traditional media. I don't see a serious response of outrage on the blogs. If you google "binyam mohamed," you see that virtually no US media are discussing this case. I simply cannot understand or accept that.

I may be sorely out of step with others on this. So be it. As I've said before, I'd rather be out of formation than off course. I just don't understand how this kind of torture can be exposed, and how the US can suppress information about it in UK courts, and why we, that's you and I, aren't up in arms about this and pushing the story into the sunlight.

Close Gitmo!

Tell President-elect Obama to close Gitmo on 1/20/09. Here's a petition. You know what to do.

On National Numbness

This morning's Docudharma Times led off with a New York Times story about the interrogation of Khalid Shaikh Mohammed. It's worth reading all the way through. I found it extremely disturbing, and I haven't been able to get it out of my mind. Hence, this essay is an expansion of this comment.

As Viet71 appropriately noted in the comments, the Times story

tries to put a "human face" on the CIA torture of prisoners by focusing on a CIA interrogator who doesn't seem to be such a bad guy at all.

The writer displays absolutely no disgust for the topic about which he writes and paints a fairly calm picture of the CIA renditions and harsh methods.

There is no mention in the article of high-level administration approval of torture.

All in all, I believe this article is aimed at causing people to believe that what the CIA did in these renditions just wasn't that bad.

In other words, the story appears to be propaganda for the acceptance of CIA behavior in extraordinary renditions illegal extraditions and harsh interrogation techniques torture.

I agree with the comment. How, I wonder, can the arrest, detention in a secret prison in Poland, illegal extradition, and yes, torture, of Khalid Shaikh Mohammad not provoke outrage? How, I wonder, did we end up with a story focusing on the "good cop" in the interrogation, and virtually ignoring the "bad cops", the ones with whom the "good cop" was acting in concert in the interrogation, the "knuckledraggers" who admittedly, repeatedly abused the prisoner? Do we just overlook the war crimes and human rights violations? Are we numb?

Khalid Shaikh Mohammad, by all accounts might be a very, very bad man. But hasn't the law in the US recognized, especially in death penalty cases like this one, that death is different and that extensive procedural safeguards are appropriate especially when dealing with the very worst of bad men? Put another way, isn't it in dealing with people like Khalid Shaikh Mohammad that the most safeguards are required if we are to make a fair, unbiased, reliable appraisal of guilt? And isn't this story glossing over the "shortcuts" and "deviations" that were taken and continue in this case? Are we oblivious to the lack of procedure despite 400 years of common law? Are we numb?

Buried deep in the Times story is this:

Mr. Mohammed met his captors at first with cocky defiance, telling one veteran C.I.A. officer, a former Pakistan station chief, that he would talk only when he got to New York and was assigned a lawyer - the experience of his nephew and partner in terrorism, Ramzi Yousef, after Mr. Yousef's arrest in 1995.

But the rules had changed, and the tough treatment began shortly after Mr. Mohammed was delivered to Poland. By several accounts, he proved especially resistant, chanting from the Koran, doling out innocuous information or offering obvious fabrications. The Times reported last year that the intensity of his treatment - various harsh techniques, including waterboarding, used about 100 times over a period of two weeks - prompted worries that officers might have crossed the boundary into illegal torture.

So. "Cocky defiance" is the same thing as attempting to assert the right to counsel and the right to remain silent. The Constitutional rights enumerated in Miranda v. Arizona include, "You have the right to remain silent," and "You have a right to a lawyer." Evidently, Mr. Mohammad tried to assert both rights. But, unbeknownst to him, refusing to provide counsel or ceasing the interrogation until one was present was OK because "the rules had changed" in his case. Mohammad probably didn't get the memo about that. Nor to be frank, did I. So instead of not interrogating until the prisoner had counsel, the US used "various harsh techniques including waterboarding" about 100 times within two weeks. And the article opines that this might be torture.

Might be torture? Let's to the arithmetic. 100 techniques divided by 14 days is 7 techniques per day. Are we anesthetized? Are we numb?

And then there's something else. When Mohammad said he wanted counsel and didn't want to talk, did the interrogators have to go up the chain of command to decide what to do? Or did they already know to deny the request because it had been planned for? Where are the memos that explain all of this, the ones that explain that "enemy combatants" have no rights to silence or to lawyers? They're classified and we cannot see them. But we don't make a big deal about that. Are we numb?

Forgive me if I sound alarmist, but uncritical acceptance of stories like this one, and failure to follow up on the questions they raise, is a step toward a United States that believes that torture is all right in some cases, that warrantless wiretapping is all right in some cases, that illegal extraditions are all right in some cases, the secret prisons are all right in some cases, that detention without access to the courts is all right in some cases, in sum, that doing monstrous and unprecedented things is all right in some cases because it might make the US safer and the US is afraid not to.

There's an obvious problem with all of this. A US that guts its principles, rips up its Constitution, and justifies these terrible policies and even more won't be the US you used to know. It will have been transformed into something else, something totalitarian and oppressive.

Torture: "The Twentieth Hijacker's" Case

cross posted from docuDharma

AP reports that charges have been dropped against the alleged "Twentieth Hijacker", Mohammed al-Qahtani:

The Pentagon has dropped charges against a Saudi at Guantanamo who was alleged to have been the so-called "20th hijacker" in the Sept. 11 attacks, his U.S. military defense lawyer said Monday.

Mohammed al-Qahtani was one of six men charged by the military in February with murder and war crimes for their alleged roles in the 2001 attacks. Authorities say al-Qahtani missed out on taking part in the attacks because he was denied entry to the U.S. by an immigration agent.

But in reviewing the case, the convening authority for military commissions, Susan Crawford, decided to dismiss the charges against al-Qahtani and proceed with the arraignment for the other five, said Army Lt. Col. Bryan Broyles, the Saudi's military lawyer.

The charges were dropped without prejudice, meaning that they could be reinstated. al-Qahtani was to face the death penalty, along with five others, in trials before Military Commissions at Guantanamo.

Why were the charges dropped? Because al-Qahtani had been tortured. Of course, Crawford did not say. And his lawyer couldn't comment yet.

Officials previously said al-Qahtani had been subjected to a harsh interrogation authorized by former Defense Secretary Donald H. Rumsfeld. /snip

U.S. authorities have acknowledged that Mohammed was subjected to waterboarding by CIA interrogators and that al-Qahtani was treated harshly at Guantanamo.

Al-Qahtani last fall recanted a confession he said he made after he was tortured and humiliated at Guantanamo.

The alleged torture, which he detailed in a written statement, included being beaten, restrained for long periods in uncomfortable positions, threatened with dogs, exposed to loud music and freezing temperatures and stripped nude in front of female personnel.

There's lots of information about exactly how al-Qahtani was tortured. In fact, there's a partial log (pdf format) of his interrogation at Guantanamo in Fall, 2002.

In his book, Torture Team, Philip Sands describes al-Qahtani's treatment in Guantanamo in greater detail:

By the time his interrogators started using "enhanced techniques" to extract information from him, al-Qahtani had been kept in isolation for three months in a cell permanently flooded with light. An official memo shows that he "was talking to nonexistent people, reporting hearing voices, [and] crouching in a corner of the cell covered with a sheet for hours on end". He was abused, exposed to extreme cold and deprived of sleep for a further 54 days of torture and questioning. What useful testimony could be extracted from a man in this state?

And there are the additional details from from this October, 2006 MSNBC story:

Mohammed al-Qahtani, detainee No. 063, was forced to wear a bra. He had a thong placed on his head. He was massaged by a female interrogator who straddled him like a lap dancer. He was told that his mother and sisters were whores. He was told that other detainees knew he was gay. He was forced to dance with a male interrogator. He was strip-searched in front of women. He was led on a leash and forced to perform dog tricks. He was doused with water. He was prevented from praying. He was forced to watch as an interrogator squatted over his Koran.

That much is known. These details were among the findings of the U.S. Army’s investigation of al-Qahtani's aggressive interrogation at Guantanamo Bay, Cuba.

According to the MSNBC article:

In interviews with MSNBC.com — the first time they have spoken publicly — former senior law enforcement agents described their attempts to stop the abusive interrogations. The agents of the Pentagon's Criminal Investigation Task Force, working to build legal cases against suspected terrorists, said they objected to coercive tactics used by a separate team of intelligence interrogators soon after Guantanamo's prison camp opened in early 2002. They ultimately carried their battle up to the office of Secretary of Defense Donald H. Rumsfeld, who approved the more aggressive techniques to be used on al-Qahtani and others.

Although they believed the abusive techniques were probably illegal, the Pentagon cops said their objection was practical. They argued that abusive interrogations were not likely to produce truthful information, either for preventing more al-Qaida attacks or prosecuting terrorists.

And they described their disappointment when military prosecutors told them not to worry about making a criminal case against al-Qahtani, the suspected "20th hijacker" of Sept. 11, because what had been done to him would prevent him from ever being put on trial.

So today's announcement isn't something that's completely new. US authorities have known for quite some time that a trial of al-Qahtani would be a trial in which the details of his torture would have to be established and considered. And now the other foot has dropped. al-Qahtani was tortured, and to prevent complete public disclosure of what was done to him and by whom, to veil what happened, the charges against him have been dropped:

Authorities have said they plan to broadcast the trials to military bases in the United States so relatives of the victims of the attacks can see the proceedings. source

A trial about torture isn't exactly what the Government has in mind. It would prefer something that appeared more just, something that would be better from a public relations standpoint.

Department Of Irony: Lawlessness On Law Day

Today, May 1, 2008, in addition to everything else is Law Day in the United States:

Fifty years ago President Eisenhower proclaimed the first Law Day a "day of national dedication to the principle of government under law." The ABA [the American Bar Association] invites you to celebrate this enduring principle during the 50th anniversary of Law Day.

Law Day 2008 will explore the meaning of the rule of law, fostering public understanding of the rule of law through discussion of its role in a free society.

The Rule of Law. How interesting that the Bush Administration would today inform us that one of the functions of law is to keep certain laws secret from the public. Don't bang your head on the desk. You read that properly. On Law Day the Bush Administration announced that it could enact laws and keep them a secret from you. That's in your very own best interest, of course.

Join me in the Irony Corner.

Today's New York Times reports that El Presidente doesn't have to tell Congress about its legal arguments about torture, and El Presidente doesn't have to tell the citizenry what Executive Orders, what laws he's enacted:

In a partial concession to Congressional pressure, the Bush administration agreed on Wednesday to show the Senate and House Intelligence Committees secret Justice Department legal opinions justifying harsh interrogation techniques that critics call torture.

The decision, announced at a Senate hearing where Democrats sharply criticized the administration’s secrecy on legal questions, did not satisfy other members of Congress who have pushed for the documents for several years, notably Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee.

A spokesman for the Justice Department said officials were discussing whether to share part or all the opinions with Mr. Leahy’s panel.

In other words, members of Congress, according to the Administration, might not be shown all of the legal opinions El Presidente relies upon to justify torture, some of them might just have to be kept secret from Congress.

But that's not the ironic part, that the Government thinks the Senate and House cannot be told the legal arguments for its policies even though the Senators and House Members have security clearances. No. Later in the story is the part channeled directly from Bizarro world. Here it is:

At the hearing, a department official, John P. Elwood, disclosed a previously unpublicized method to cloak government activities. Mr. Elwood acknowledged that the administration believed that the president could ignore or modify existing executive orders that he or other presidents have issued without disclosing the new interpretation.

Mr. Elwood, citing a 1980s precedent, said there was nothing new or unusual about such a view.

This is May 1, not April Fool's Day. Elwood is not kidding. In other words, those Executive Orders you can read in the Federal Register that tell you what the law is, well, they might not be the law after all, because El Presidente can ignore or modify existing executive orders and then -- this is the most bizarre part-- not tell you or anybody else outside the Government about it.

That's called "secret laws," laws that are, well, secrets from us.

According to the Times, Senator Russ Feingold accused the administration of a “sinister trend” of promoting “secret law.” Feingold said:

“It is a basic tenet of democracy that the people have a right to know the law,” Mr. Feingold said.

I bet you thought that was how things were supposed to go, that the people have the right to know the law. That people are supposed to know exactly what the law is. What a radical concept. According to Bushco, that would be simply w.r.o.n.g.:

Mr. Elwood, deputy assistant attorney general for the Office of Legal Counsel, disputed that declining to make legal opinions public created improper “secret law.” He said some legal opinions had to be kept from public release, at least for a time, because they deal with classified programs or to ensure that government lawyers can give confidential legal advice.

Ditto Executive orders.

According to the Times, Senator Sheldon Whitehouse disagreed, pointing out that the administration’s legal stance would let it secretly operate programs that are at odds with public executive orders that appeared to be in force:

Mr. Whitehouse, who sits on the Judiciary and Intelligence Committees, has said the administration’s contention that it can selectively modify executive orders “turns The Federal Register into a screen of falsehoods behind whose phony regulations lawless programs can operate in secret.”

Mr. Elwood said publicly available legal opinions dating from 1987 make clear the Justice Department’s view that the president has the power to change executive orders.

Mr. Whitehouse said, “There’s an important piece missing from that, which is not telling anybody and running a program that’s completely different from the executive order.”

Of course, the "legal opinions" from the 1980's and from 1987 aren't printed in today's Times, nor have they been identified elsewhere, so we cannot read them and marvel at their brilliance. I can hardly imagine what these opinions, written during the tenure of that great Constitutionalist, Sainted Ronald Reagan actually say.

El Presidente's response to these criticisms?

Asked about those remarks, a spokesman for the Justice Department, Brian Roehrkasse, said the president would “generally” publicly modify or revoke an executive order before directing actions that conflicted with it.

“With respect to classified programs, however,” Mr. Roehrkasse added, publicly changing an executive order might “not be in the interest of the country’s national security.” In such cases, he said, the Congressional Intelligence Committees or their leaders would be informed.

Isn't this a wonderful way for El Presidente to mark Law Day, the day that is supposed to "explore the meaning of the rule of law, fostering public understanding of the rule of law through discussion of its role in a free society." Que ironia.

Secret Afghani Trials For Detainees

The New York Times this morning is reporting that Afghanistan is holding secret trials for dozens of Afghan men who were formerly detained by the US in Gitmo and Baghram:

Dozens of Afghan men who were previously held by the United States at Bagram Air Base and Guantánamo Bay, Cuba, are now being tried [in Afghanistan] in secretive Afghan criminal proceedings based mainly on allegations forwarded by the American military.

The prisoners are being convicted and sentenced to as much as 20 years’ confinement in trials that typically run between half an hour and an hour, said human rights investigators who have observed them. One early trial was reported to have lasted barely 10 minutes, an investigator said. /snip

Witnesses do not appear in court and cannot be cross-examined. There are no sworn statements of their testimony.

Instead, the trials appear to be based almost entirely on terse summaries of allegations that are forwarded to the Afghan authorities by the United States military. Afghan security agents add what evidence they can, but the cases generally center on events that sometimes occurred years ago in war zones that the authorities may now be unable to reach.

“These are no-witness paper trials that deny the defendants a fundamental fair-trial right to challenge the evidence and mount a defense,” said Sahr MuhammedAlly, a lawyer for the advocacy group Human Rights First who has studied the proceedings. “So any convictions you get are fundamentally flawed.”

According to the Times, since 2002 the Bush administration has been trying to get various countries to prosecute Gitmo prisoners as part of their "repatriation." Britain and other countries have refused because they say that US evidence won't hold up in their courts. But not Afghanistan:

the Afghan authorities have now tried 82 of the former prisoners since last October and referred more than 120 other cases for prosecution.

Of the prisoners who have been through the makeshift Afghan court, 65 have been convicted and 17 acquitted, according to a report on the prosecutions by Human Rights First that is to be made public on Thursday.

What does the US government say about these remarkable, civilized, reliable, fair trials? Please refrain from scoffing:

United States officials defended their role in providing information [and the defendants] for the Afghan trials as a legitimate way to try to contain the threats that some of the more dangerous detainees would pose if they were released outright.

“These are not prosecutions that are being done at the request or behest of the United States government,” said Sandra L. Hodgkinson, the deputy assistant secretary of defense for detention policy. “These are prosecutions that are being done by Afghans for crimes committed on their territory by their nationals.”

Ms. Hodgkinson said the United States had pressed the Afghan authorities “to conduct the trials in a fair manner,” and had insisted that lawyers be provided for the prisoners after the first 10 of them were convicted without legal representation. But she did not directly reject the criticisms raised in the Human Rights First report, adding, “These trials are much more consistent with the traditional Afghan justice process than they are with ours.”

Let us briefly review the trial options for Afghani prisoners in Gitmo: indefinite detention without trial and without habeas review by the US courts (depending on pending US Supreme Court decisions) and possibly with interrogations torture, OR possibly torture and then a show trial by a US military commission without confrontation of witnesses, possibly resulting in a death sentence, OR possibly torture followed by a second, illegal extradition to Afghanistan and a "trial" without a record or review that results in decades of confinement in an Afghani prison. Spam, egg, spam, spam, bacon and spam.

Pardon me for being overly fastidious about the trial rights of the accused, but that's an extremely disgraceful, embarrassing list of options.

Outsourcing Torture? It Depends

Torture At Abu Ghraib

It depends on what you mean by "outsourcing." If, like me, you've been assuming that "interrogations" of detainees prisoners at Guantanamo and the "black sites" were all being conducted only by CIA employees or uniformed armed forces personnel or at the very least US government employees, you're probably making a mistake. The facts seem to be that "interrogations" have frequently been conducted by "contractors" and not by government employees. That's right. Arguments about what the CIA's employees can and cannot do don't directly address what contractors can do any more than US law determines how prisoners are to be interrogated after they are extraordinarily renditioned illegally extradited to other countries.

In November, 2007, the WaPo reported that a suit by 200 Iraqis against abuses by contractor "interrogators" at Abu Ghraib in 2003 could continue:

A federal judge in Washington ruled yesterday that a civil lawsuit alleging abuse and torture at the Abu Ghraib prison in Iraq can go forward against a U.S. military contractor, setting the stage for what could be the first case in a U.S. civilian court to weigh accountability for the notorious abuses in 2003.

U.S. District Judge James Robertson denied CACI International's motion to dismiss a civil lawsuit on behalf of more than 200 Iraqis who at one time were detained at the Abu Ghraib prison. The Iraqis allege that the contracted CACI interrogators took part in abuses and that the company should be held liable for the harm inflicted on the detainees.

Attorneys for the Arlington-based CACI have argued the company should be immune from such a lawsuit because it worked at the behest of the U.S. military, but Robertson said he believes a jury should hear the case, in part because CACI had its own chain of command and might not have answered directly to the military. /snip

Susan L. Burke, a lawyer representing the Iraqi detainees along with the Center for Constitutional Rights, alleges that CACI interrogators were responsible for numerous abuses. Burke also filed a similar lawsuit against Blackwater for wrongful death over the Sept. 16 incident in Baghdad. /snip

Military investigations of the Abu Ghraib abuse linked CACI interrogators to alleged abuses such as the use of dogs in interrogations and putting detainees in painful "stress positions."

The lawsuit, which remains pending and is apparently unique in getting so far toward a trial, makes the point that the "interrogations" weren't conducted solely by CIA or by army personnel. No. Not at all. In Abu Ghraib, the claim is that contractors were abusive. Contractors, as opposed to US employees, have been accused of abuse torture. Is Abu Ghraib an isolated venue for contractor use? Apparently it is not. Is Abu Ghraib an isolated venue for abuse? Apparently it is not. Evidently, the CIA uses contractors in a host of situations and in various locations to conduct their "enhanced interrogations."

In February 5, 2008 testimony before the Senate Select Intelligence Committee, CIA Director Mike Hayden admitted to using contractors for "enhanced interrogation" at the CIA's secret prisons, the so-called "black sites." The Q&A:

FEINSTEIN: I'd like to ask this question: Who carries out these [enhanced interrogation] techniques? Are they government employees or contractors?

HAYDEN: At our facilities during this, we have a mix of both government employees and contractors. Everything is done under, as we've talked before, ma'am, under my authority and the authority of the agency. But the people at the locations are frequently a mix of both -- we call them blue badgers and green badgers.

FEINSTEIN: And where do you use only contractors?

HAYDEN: I'm not aware of any facility in which there were only contractors. And this came up...

FEINSTEIN: Any facility anywhere in the world?

HAYDEN: Oh, I mean, I'm talking about our detention facilities. I want to make something very clear, because I don't think it was quite crystal clear in the discussion you had with Attorney General Mukasey.

As Hayden pointed out, "In many instances, the individual best suited for the task may be a contractor." And you'll note the waffling around about "detention facilities" as compared to some other kind of "facility."

What's this blue badge green badge talk? "Green badges" are contractors and there are two kinds: individuals, who are contracted by the CIA, and those who work for a corporation under contract with the CIA. For quite some time, the CIA has directly hired its former employees and other experts individually as contractors. Since 9/11 there has been an increase of corporate contractors without whom the CIA probably could not function. Put another way, some of the CIA's important functions have been "privatized."

Because of this, Hayden was asked about whether "enhanced interrogations" had been "outsourced." He denied it:

HAYDEN: This is not where we would turn to Firm X, Y or Z, and say, This is what we would like you to accomplish. Go achieve that for us and come back when you're done. That is not what this is.

This is a governmental activity under governmental direction and control, in which the participants may be both government employees and contractors, but it's not outsourced.

FEINSTEIN: I understand that.

HAYDEN: OK. Good.

FEINSTEIN: Is not the person that carries out the actual interrogation, not the doctor or the psychologist or supervisor or anybody else, but the person that carries out the actual interrogation a contractor?

HAYDEN: Again, there are times when the individuals involved are contractors, and there are times when the individuals involved have been government employees. It's been a mix, ma'am.

In other words, the "governmental function" of "enhanced interrogations" is not necessarily carried out by government employees. Oh no. In Bushco's America in some cases it's carried out by private contractors. This evidently is not new news. The issue has been around for some time.

In 2004, the Baltimore Sun reported that contractors were acting as interrogators:

The U.S. military's use of private contractors for the sensitive task of wartime interrogation marks a sharp shift from traditional practices and is raising difficult issues of accountability as authorities investigate the alleged role civilian workers played in the abuse of Iraqi prisoners. /snip

But critics say that reliance on nonmilitary personnel undermines a key safeguard - the threat of punishment. While U.S. soldiers allegedly involved in the acts face a military court-martial or other sanctions, the legal status and possible penalties for private workers are far less certain.

Two federal laws adopted in the past decade - each intended to protect Americans abroad - could be used to pursue charges against private military workers overseas, legal scholars and military experts said yesterday. Neither statute has been tested in any situation like the Iraqi prison abuse.

"The whole status of private contractors is murky," said law professor Scott L. Silliman, executive director of Duke University's Center on Law, Ethics and National Security. The growth in the use of private contractors to fill even the most sensitive military roles has in some ways outpaced U.S. law, he said: "It is an area of great concern."

In other words, the privatization of enhanced interrogation torture not only pays private corporations and individuals for performing governmental functions, it also intolerably undermines legal accountability for abuse and for torture. Criminal legal accountability under the two available, federal statutes requires prosecutions by US Attorneys. To the extent that no such prosecutions have been commenced, the "privatization", the "outsourcing" shields torture crimes from all accountability.

More Lies About Torture In Guantanamo

This Is What Torture Looks Like

How gullible are we? How much nonsense will we consider truthful? How many lies and contradictions and just plain nonsense about torture do we need to be told before we say, "Basta ya! Enough already!" The photo clearly depicts the torture of detainees prisoners at Guantanamo: stress positions and sensory deprivation. But today the WaPo reports that Bushco says its activities don't really cross the line and aren't quite torture.

The Bush administration allowed CIA interrogators to use tactics that were "quite distressing, uncomfortable, even frightening," as long as they did not cause enough severe and lasting pain to constitute illegal torture, a senior Justice Department official said last week.

In testimony before a House subcommittee, Steven G. Bradbury, the acting chief of the Justice Department's Office of Legal Counsel, spelled out how the administration regulated the CIA's use of rough tactics and offered new details of how simulated drowning was used to compel disclosures by prisoners suspected of being al-Qaeda members.

The method was not, he said, like the "water torture" used during the Spanish Inquisition and by autocratic governments into the 20th century, but was subject to "strict time limits, safeguards, restrictions." He added, "The only thing in common is, I think, the use of water."

Bradbury indicated that no water entered the lungs of the three prisoners who were subjected to the practice, lending credence to previous accounts that the noses and mouths of CIA captives were covered in cloth or cellophane. Cellophane could pose a serious asphyxiation risk, torture experts said.

So here we go again. It's "simulated" drowning, rather than asphyxiation. It's regulated. It's limited. Right. Naturally, these assertions called for a harsh response:

Martin S. Lederman, a former Office of Legal Counsel official who teaches law at Georgetown University, called Bradbury's testimony "chilling." In an online posting, Lederman said that "to say that this is not severe physical suffering -- is not torture -- is absurd. And to invoke the defense that what the Spanish Inquisition did was worse and that we use a more benign, non-torture form of waterboarding . . . is obscene."

Bradbury is arguing that there is some magical, bright line between "quite distressing, uncomfortable, even frightening" conduct and torture, and that Bushco in its infinite wisdom and sensitivity knows just where that line is and that it always manages to stop before it crosses the line and actually tortures. This is, of course, arrant nonsense. If this were even close to being true, we'd be watching the videotapes of the 24,000 interrogations conducted at Gitmo and nodding our heads in agreement at how benign they were.

And, of course, Bradbury's, and the WaPo's attention to "waterboarding", continues to make that activity the focus of inquiry when, in fact, that is just one of the many forms of torture the administration uses at Guantanamo and in "black sites" in other countries that are completely unacceptable in a civilized world.

But enough of the imprecision. Slate has compiled a list of the techniques the US uses on detainees prisoners in Guantanamo as well as the documents that discuss the "authority" for doing these things. Which brings us back to the photo above.

"Stress positions", like the ones in the photo, kneeling on the ground for long periods of time in awkward positions, were approved by Donald Rumsfeld in a 2002 Memorandum. Wrote the ever compassionate Donald R on the first page of the memo, "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?" This technique was also discussed in the CIA's KUBARK manual. And FM 34-52 recognizes that it is physical torture to force "an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time." So what's going on in the photo? Are we being told that this is ok because it didn't go on for long? The person in orange is just sitting down for a second or two?

And what's that on the person in orange's head and hands and eyes? The photo also documents the use of "sensory deprivation." Salon writes:

...sensory deprivation. The benign-sounding form of psychological coercion has been considered effective for most of the life of the (CIA) /snip
The technique has already been employed during the "war on terror," and, Salon has learned, was apparently used on 14 high-value detainees now held at Guantánamo Bay.

A former top CIA official predicted to Salon that sensory deprivation would remain available to the agency as an interrogation tool in the future. "I'd be surprised if [sensory deprivation] came out of the toolbox," said A.B. Krongard, who was the No. 3 official at the CIA until late 2004. Alfred McCoy, a history professor at the University of Wisconsin-Madison who has written extensively about the history of CIA interrogation, agrees with Krongard that the CIA will continue to employ sensory deprivation. "Of course they will," predicted McCoy. "It is embedded in the doctrine." For the CIA to stop using sensory deprivation, McCoy says, "The leopard would have to change his spots." And he warned that a practice that may sound innocuous to some was sharpened by the agency over the years into a horrifying torture technique.

Sensory deprivation, as CIA research and other agency interrogation materials demonstrate, is a remarkably simple concept. It can be inflicted by immobilizing individuals in small, soundproof rooms and fitting them with blacked-out goggles and earmuffs. "The first thing that happens is extraordinary hallucinations akin to mescaline," explained McCoy. "I mean extreme hallucinations" of sight and sound. It is followed, in some cases within just two days, by what McCoy called a "breakdown akin to psychosis." /snip

Just like waterboarding, Massimino said, extreme sensory deprivation techniques "push people beyond the brink of what they can bear, physically and mentally. Once you understand that, the veneer of acceptability -- the myth that 'it's not torture, it's just harsh' -- completely falls apart." But compared to the outcry over physical torture, she described a "deafening silence" about techniques like sensory deprivation.

Severe sensory deprivation clearly violates the Geneva Conventions and would be illegal under the Military Commissions Act's ban on "severe or serious mental pain and suffering." In fact, some subjects never fully recover. Put another way, sensory deprivation is torture.

How, you might wonder, can Bradbury speak before a House Subcommittee and make the statements he made and miraculously not be confronted with the widely available photos of stress positions and sensory deprivation? Why, you might wonder, does Bushco's defense of torture go on and on and on, and it's dutifully reported by the Traditional Media, and yet nothing happens to stop the torture? And how, given what it is doing in Guantanamo and in the "black sites," can the US not be considered a pariah, a rogue among civilized nations?

Are we ever going to stop the torture and prosecute those who perpetrated it?

How Did We Get Here?

Lately, the Dream Antilles has been about Guantanamo and torture. How did that happen? And isn't this, after all, supposed to be a lit blog? You know, a blog about books and literature and writing and fiction. Well, to be honest, the narrator here has a pebble in his shoe, a burr under his saddle. He's annoyed and irritated about torture. Of all things. So, of course, that expresses itself here. And alas, it's likely to continue to come up because your narrator doesn't seem to know how to ameliorate his aggravation. He keeps on ranting. He insists on posting essays on dKos and docuDharma about torture. Then he complains bitterly about the comments the supposedly liberal people at dKos post about his essays. He doesn't receive such a nettlesome response at docuDharma. He says he feels like his hair's on fire. Put another way, the narrator of this blog thought he was beginning a digression about torture, but now it's a whole, full time topic by itself, and he doesn't remember exactly what he was saying before he began meandering. Among the questions he has is why most people in the US, let alone Senators Joe Lieberman and John McCain, aren't apparently bothered by torture. Is it your narrator's job to continue to rage and prod on torture until something changes?

Meanwhile, he finished reading Roberto Bolano's The Savage Detectives, which has fourteen different narrators. And at least two characters (Garcia Madero and Arturo Belano) who are autobiographical Bolanos. The book is about a circle of "visceral realist" poets in Mexico City and takes place also in Northern Mexico, Spain, Israel, and elsewhere. He enjoyed it thoroughly. Let me repeat that Bolano, it seems, has 14 narrators, each of which is convincing. Meanwhile, in your narrator's current writing project, his one narrator is having trouble finding and maintaining his voice. Bolano had an embarrassment of riches. Your humble narrator is toiling away, and his narrator is making his skin itch.

Your humble narrator also finished reading Junot Diaz's The Brief Wondrous Life of Oscar Wao, which has one narrator, Yunior, who goes from omniscient to being a character in the novel. This is actually a pleasure. Yunior begins outside this historical story of the Dominican diaspora in New Jersey and the DR, but emerges later as Oscar's roommate and Oscar's sister's lover. Oscar Wao, by the way, is supposed to be a Spanglish mispronunciation of "Oscar Wilde." Because Trujillo is so important to the plot (not to worry it will not be given away here) parts of the book resemble aspects of Vargas Llosa's The Feast of the Goat and Julia Alvarez's In the Time of the Butterflies, but Diaz's story takes all of that to a different level. Diaz's narrator is charming, authoritative, smart, literary, funny, sly. Your narrator's narrator in progress, on the other hand , just isn't. At least not yet.

Both Bolano and Diaz are great reads, and both were recognized by being included in many lists of the Best Books of 2007.

Meanwhile, your narrator is stuck. He remains bothered by torture and his narrator's voice's lack of conviction and consistency. He hopes that things will improve on both fronts soon, but he's not holding his breath. Winter seems interminable.

Torture, Lies And Videotape At Gitmo

Still Guantanamo

Every day it just gets worse. Today (h/t to Smintheus at dKos), Prof Mark Denbeaux of Seton Hall University Law School (with assistance from many others) released a report (pdf format) on interrogations at Gitmo. It's a shocker. Among other things it says that there have been 24,000 "interrogations" at Gitmo and that all of them have been videotaped.

The short of it (from the report's executive summary):

*More than 24,000 interrogations have been conducted at Guantánamo since 2002.

*Every interrogation conducted at Guantánamo was videotaped.

*The Central Intelligence Agency is just one of many entities that interrogated detainees at Guantánamo.

*The agencies or bureaus that interrogated at Guantánamo include: the Central Intelligence Agency and its Counterterrorism Center; the Criminal Investigation Task Force (CITF); the Federal Bureau of Investigation (FBI); the Behavioral Analysis Unit (BAU) of the FBI; Defense Intelligence Analysis (DIA); Defense Human Intelligence (HUMINT); Army Criminal Investigative Division (ACID); the Air Force Office of Special Investigations (OSI); and the Naval Criminal Investigative Service (NCIS). Private contractors also interrogated detainees.

*Each of these entities has identical motives to destroy taped investigations as has the Central Intelligence Agency. As one former senior Central Intelligence Agency official put it: “It’s a qualitatively different thing—seeing it versus reading about it.”
One Government document, for instance, reports detainee treatment so violent as to “shake the camera in the interrogation room” and “cause severe internal injury.” Another describes an interrogator positioning herself between a detainee and the camera, in order to block her actions from view.

*The Government kept meticulous logs of information related to interrogations. Thus, it is ascertainable which videotapes documenting interrogations still exist, and which videotapes have been destroyed.

There's a whole lot more in the report. The report is a remarkable piece of work, and Denbeaux and his team deserve a great deal of credit for important work well done.

Now that it has been the disclosed that every "interrogation" has been videotaped-- something that the Bush administration has not previously admitted-- one would hope that those in Congress who are in charge of oversight might want to view the video tapes. They might want to see what techniques are actually being used in Gitmo. They might want to decide with their own eyes and ears whether what is going on in Gitmo is or is not torture, is or is not legal, is or is not something they feel is appropriate. They might want to see the videos and decide whether they've been told the truth about Gitmo, or if what they've been told is a pack of lies. Bottom line, whatever is on the video is going to be different from reading about the events in classified documents.

At the very least those who are responsible for oversight should immediately demand that they be provided with copies of all of these videotapes. They have the staff and resources to cull these videotapes and to find out precisely what has been going on. And they should do that. This is what they were elected to do. And it's different from sitting in briefings about the "interrogations" and nodding their heads. (Yes, I'm talking to you, Nancy.)

And what if, as before, it turns out that the videotapes have been-- quel surprise!-- destroyed? Maybe Arlan Spector and others can rouse them selves and make as big a deal out of these Guantanamo videotapes as they have about the NE Patriots videos.

Might this be something to dial up "our" Congress people about?

Contradictions About Torture

The Original Edgar Bergen and Charlie McCarthy

This is really fascinating. And short. Whoever is playing Edgar Bergen has apparently temporarily lost control of his sockpuppet Charlie McCarthy. The story is that the voices of Bushco apparently don't agree today on the legality of waterboarding torture.

The New York Times blog pulls it all together:

Steven G. Bradbury, the acting head of the Justice Department’s Office of Legal Counsel, seemed set to shake up one of the fiercest debates in Washington today by offering a clear and concise statement about the controversial interrogation technique known as waterboarding, which simulates drowning.

‘’There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law,'’ he says in prepared remarks for a House hearing today that were obtained in advance by The Associated Press.

The administration’s current interrogation rules are “narrower than before” waterboarding was used five years ago by the C.I.A., he said. Earlier this week, Attorney General Michael B. Mukasey said that “in order for it to become part of the program, its legality would have to be passed on.”

Sounds like Bradbury, who hasn't been confirmed, says that waterboarding is not legal under current law. Hmmm.

But then there's this:

About two weeks ago, Attorney General Michael B. Mukasey wrote a letter to the Senate Judiciary Committee saying that the technique was not clearly illegal, as The New York Times reported:

“But with respect, I believe it is not an easy question,” he said. “There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.”

The letter did not define any of the circumstances.

"Not clearly illegal" means "sorta legal?" Or illegal but not totally? incompletely illegal?

And that's not all:

Last week, Gen. Michael V. Hayden, the director of the Central Intelligence Agency, said the legality of waterboarding was “not certain … under current statute,” a view he attributed to himself and lawyers at the C.I.A. and the Justice Department.

When legality is "not certain" it means maybe it's legal, maybe it's illegal, I don't know?

What is next? Retractions all around? Retractions called "clarifications" all around? A more "nuanced" response from some/all of the talking heads? A gag order from Edger Bergen? Stay tuned.

Show Trials: 6 Gitmo Detainees Face Death

A Gitmo Detainee

Let the Gitmo show "trials" begin. Let the Bushites promote fear of "terrorism" in behalf of McCain. Let those who have been waterboarded be convicted on statements they made under torture. Let the US show the entire world that it's mired in its barbarianism and that it will kill to advance a partisan political agenda. Let yet another national disgrace unfold.

Killing to advance a partisan political agenda isn't exactly new. Two of the most glaring examples: Ricky Ray Rector and Karla Faye Tucker. And now the eventual killing of 6 Gitmo detainees-- even if they are convicted executions will not be possible for years-- is planned. Notice when this announcement was made. It's been 6+ years since the incident, and the detainees have been in custody for more than 5 years. But the election season is upon us, and the Republican front runner believes that terrorism is his most powerful issue. Is this the earliest moment when the announcement could have been made that the death penalty would be sought? Of course not. But what better political time to announce this.

Today's New York Times tells part of the story:

Six Guantánamo detainees who are accused of central roles in the terror attacks of Sept. 11, 2001, will be shown all the evidence against them and will be afforded the same rights as American soldiers accused of crimes, the Pentagon said Monday as it announced the charges against them.

Military prosecutors will seek the death penalty for the six Guantánamo detainees on charges including conspiracy and murder “in violation of the law of war,” attacking civilians and civilian targets, terrorism and support of terrorism, Brig. Gen. Thomas Hartmann of the Air Force, legal adviser to the Defense Department’s Office of Military Commissions, said at a Pentagon news briefing.

General Hartmann said it would be up to the trial judge how to handle evidence obtained through controversial interrogation techniques like “waterboarding,” or simulated drowning. Critics have said the harsh techniques, which are believed to have been used on several of the defendants, amount to torture.

As expected, the six include Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the Sept. 11 attacks, which killed nearly 3,000 people.

The Military Commission system has not yet had a single "trial." The one case in which there was a disposition, David Hicks, involved a guilty plea. So nobody knows whether the commission system works or how it works in practice and none of the procedures has been tested in an actual "trial." And, of course, the decision to seek the death penalty was announced before any of the charges were translated and served on the accused. So the additional complications of having a death penalty trial, let alone the 6 announced at this moment, haven't been worked out. Today's dramatic announcement means that a previously untested, unused procedure will now be invoked for the first time to decide if the six live or die.

This should spark a worldwide firestorm of criticism:

The decision to seek the death penalty will no doubt increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial. The death penalty is an issue that has caused friction for decades between the United States and many of its allies who consider capital punishment barbaric.

“The system hasn’t been able to handle the less-complicated cases it has been presented with to date,” said David Glazier, a former Navy officer who is a professor at Loyola Law School in Los Angeles.

Forget that the commission hasn't been used yet. Not once. In today's announcement, to no one's surprise, General Hartmann emphasized the procedural safeguards the accused would supposedly have:

General Hartmann said he could not predict when actual trials would begin, but that pretrial procedures would take several months at least. He said the accused will enjoy the same rights that members of the American military enjoy, and that the proceedings will be “as completely open as possible,” notwithstanding the occasional need to protect classified information.

In no sense will the proceedings be secret, the general said. “Every piece of evidence, every stitch of evidence, every whiff of evidence” will be available to the defendants, General Hartmann said.

Some officials briefed on the case have said the prosecutors view their task in seeking convictions for the Sept. 11 attacks as a historic challenge. A special group of military and Justice Department lawyers has been working on the case for several years.

Evidently a speedy trial isn't one of the rights the detainees have. Nor is the freedom from torture. Nor is the suppression of statements extracted under torture or evidence derived from the fruits of torture. And it remains to be seen exactly what kind of cross examination and confrontation rights the detainees have. And what kind of rights the detainees have to call witnesses in their own behalf. And what kind of non-secret, public "trial" they will receive behind the wire in Guantanamo. General Hartmann's statements aside, there's more to due process than receiving the evidence against the accused. A whole lot more.

Put simply, today's announcement should be widely condemned for its barbarity. And for its obvious political motivations. This a complete disgrace.

Waterboarding: Those Who Cannot Remember The Past

cross posted at docuDharma

Waterboarding (read: torture) is nothing new. It's been around since the 15th century, and has a long, well documented history. That history was briefly summed up by Ted Kennedy for Democracy Now:

It’s an ancient technique of tyrants. In the fifteenth and sixteenth century, it was used by interrogators in the Spanish Inquisition. In the nineteenth century, it was used against slaves in this country. In World War II, it was used against us by Japan. In the 1970s, it was used against political opponents by the Khmer Rouge in Cambodia and the military dictatorships of Chile and Argentina. Today, it’s being used against pro-democracy activists by the rulers of Burma. When we fail to reject waterboarding, this is the company that we keep. /snip

Make no mistake about it: waterboarding is already illegal under United States law. It’s illegal under the Geneva Conventions, which prohibit outrages upon personal dignity, including cruel, humiliating and degrading treatment. It’s illegal under the Torture Act, which prohibits acts specifically intended to inflict severe physical or mental pain or suffering. It’s illegal under the Detainee Treatment Act, which prohibits cruel, inhuman or degrading treatment. And it violates the Constitution. The nation’s top military lawyers and legal experts across the political spectrum have condemned waterboarding as torture. And after World War II, the United States prosecuted— prosecuted— Japanese officers for engaging in waterboarding. What more does this nominee need to enforce existing laws?

This essay isn't about rehashing the many legal arguments about how waterboarding is torture and in violation of US and international law. Instead, this essay recalls two recent, prominent instances in which the US itself prosecuted the use of waterboarding as a crime, as torture. It raises this simple question: how can anyone who acknowledges this relatively recent history argue that waterboarding isn't a crime and isn't torture. And how is it that our learned congresspersons haven't forcefully confronted Bushco's minions with this history?

World War II
NPR reports:

In the war crimes tribunals that followed Japan's defeat in World War II, the issue of waterboarding was sometimes raised. In 1947, the U.S. charged a Japanese officer, Yukio Asano, with war crimes for waterboarding a U.S. civilian. Asano was sentenced to 15 years of hard labor.

According to this Wiki:

The United States has a historical record of regarding waterboarding as a crime, and has prosecuted individuals for the use of the practice in the past. In 1947, the United States prosecuted a Japanese military officer, Yukio Asano, for carrying out a form of waterboarding on a U.S. civilian during World War II. Yukio Asano received a sentence of 15 years of hard labor. The charges of Violation of the Laws and Customs of War against Asano also included "beating using hands, fists, club; kicking; burning using cigarettes; strapping on a stretcher head downward."

The WaPo described what Asano did:

The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.

And then there's the record of the conviction. And this article that provides the specifications (starting on page 18) on which Asano and others were tried. These included "water torture", which the charges described:

Specification 1: That in or about July or August, 1943, the accused Yukio Asano, did willfully and unlawfully, brutally mistreat and torture Morris O. Killough, an American Prisoner of War, by beating and kicking him; by fastening him on a stretcher and pouring water up his nostrils.

Specification 2: That on or about 15 May, 1944, at Fukoka Prisoner of War Branch Camp Number 3, Kyushu, Japan, the accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and torture Thomas B. Armitage, William O Cash and Munroe Dave Woodall, American Prisoners of War by beating and kicking them, by forcing water into their mouths and noses; and by pressing lighted cigarettes against their bodies.

Specification 5. That between 1 April, 1943 and 31 December, 1943, the accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and torture John Henry Burton, an American Prisoner of War, by beating him; and by fastening him head downward on a stretcher and forcing water into his nose.

And, of course, there's the testimony of victims of these crimes.

It seems clear enough that if what Asano (and others) did was not torture, Bush and Mukasey need to issue him a pardon. But, alas, Asano isn't alone. The issue arose again in Vietnam two decades later. And with the same results: waterboarding was criminal and it was torture.

Vietnam
NPR reports:

On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier.

The photo:


According to this Wiki:

Waterboarding was designated as illegal by U.S. generals in the Vietnam War. On January 21, 1968, The Washington Post published a controversial photograph of an American soldier supervising the waterboarding of a North Vietnamese POW near Da Nang. The article described the practice as "fairly common." The photograph led to the soldier being court-martialled by a U.S. military court within one month of its publication, and he was thrown out of the army. Another waterboarding photograph of the same scene is also exhibited in the War Remnants Museum at Ho Chi Minh City.

Cited source

The original WaPo article is here (pdf format, redacted).

These two cases do not involve statutory construction, a close reading of the texts of treaties, arcane principles of international law. They don't require extensive analysis. The facts are incontrovertible: in World War II and in Vietnam the US prosecuted "waterboarding" as a crime and as torture. And now, Mukasey, like Abu AG before him, and like other Bushco officials criminals have the gall to argue that "waterboarding" somehow isn't a crime. That proposition is laughable. They deserve not only our contempt. They deserve to be impeached and prosecuted.