U.S. Revokes Visa of Irish Anti-Renditions Activist

Originally posted at Firedoglake

The North Carolina News Observer reports in a March 15 article that the co-founder of ShannonWatch, Edward Horgan, a well-known Irish activist and former Irish Defense Force officer, has had his 10-year, multiple-entry U.S. visa revoked without explanation. Horgan and others believe it is because of his principled stand against the U.S. use of renditions, and in particular, the use of Shannon Airport in western Ireland as a stopover for U.S. rendition flights. ShannonWatch has documented the use of the airport as a stopover for CIA rendition flights (see their page documenting such flights).

As the NO article by Christina Cowger and Robin Kirk notes, Horgan is no long-haired radical, or bomb-making terrorist. He has been a UN peace keeper, and monitored "elections in places like Ghana, Armenia, Zimbabwe, East Timor and Ukraine." According to his online resume, he has worked with the Organization for Security and Co-operation in Europe (OSCE) and the European Union. He is getting his Ph.D. in international relations at the University of Limerick. He is also now persona non grata in Barack Obama's supposedly more open and transparent United States.

According to Cowger and Kirk:

Last year, Horgan visited the United States to see family and attend the presidential inauguration. But this year, while observing elections in frigid Kiev, he learned that his 10-year, multiple-entry U.S. visa had been revoked.

The reason? No official will say, though Horgan is scheduled to attend an April conference at Duke University to speak about his opposition to extraordinary rendition.

In fact, Horgan is still listed on the speakers panel for the Duke conference -- "Weaving a Net of Accountability: Taking on extraordinary rendition at the state and regional level" -- along with Scott Horton; rendition victim and CIA black site torture survivor and Guantanamo prisoner, Bisher al-Rawi; psychologist-activist, and president of Psychologists for Social Responsibility, Stephen Soldz; ACLU Senior Staff Attorney Steven Watt; Co-director of the International Human Rights Clinic, Margaret Satterthwaite; and others. Christina Cowger, who, I should note, wrote the NO article referenced here, is also listed as a speaker, affiliated with North Carolina Stop Torture Now.

It seems reasonable to assume, lacking any other evidence, that Horgan is being politically targeted by the Obama administration. This is the kind of behavior we came to expect in the days of Bush and Cheney. But it goes with the territory. Barack Obama decided in the first weeks of his administration to maintain the previous administration's rendition program, complete with fig-leaf assurances that U.S. authorities would receive no-harm promises from Egypt, Morocco, Jordan, and other rendition destination sites known for wide-spread use of torture. No human rights organization believes that promise, and U.S. State Department Human Rights Country Reports have strongly criticized many of these countries for their use of torture, arbitrary detention and prison conditions.

In Working Document No. 8 (PDF), the European Union (EU) last year summarized its investigation into CIA use of European countries for the Bush rendition program. The report notes, by the way, "It is worth to remind that, in many occasions, it is not only the CIA the single organiser of the flights included in this working document... but also other entities of US administration, among [them] the Department of Defence..."

Documenting U.S. Rendition Flights in Europe

The Working Document reports over 1000 rendition flights between the end of 2001 and the end of 2005, including the "extraordinary renditions" of Abu Omar, Maher Arar, Khaled el-Masri, Ahmed al-Giza, Mohamed El-Zari, Binyam Mohammed, Bisher al Rawi, Jamil El-Banna, Abou Elkassim Britel, among others. With destinations in Jordan, Azerbaijan, Turkmenistan, Egypt, Morocco, Iraq, Uzbekistan, Afghanistan, Libya, Guantanamo and elsewhere, these flights had stopovers in all 25 EU countries, as well as Romania, Iceland, Switzerland, Albania, Turkey, and elsewhere.

Truly, the scope of the U.S. rendition program was world-wide, and no one really knows the full extent of the massive kidnapping and torture operation. One of the airlines associated with CIA renditions, Aero Contractors, is based in Smithfield, North Carolina.

The Obama administration has done its best, as well, to keep the lid on accountability for these crimes, using legal maneuvers to keep suits by rendition victims out of the courts, citing expanded views of "state secrets" privilege to shut down such cases. The ACLU suit against Boeing subsidiary Jeppesen DataPlan is one of the key legal cases the U.S. has tried to squelch by the use of such tactics.

As one example, the EU report documents that the plane used for the "extraordinary renditions" of German citizen Khaled el-Masri from Skopje to Afghanistan on 24 January 2004, and Ethiopian citizen and British resident Binyam Mohammed from Rabat to Kabul on 22 January 2004 -- a Boeing 737-7ET aircraft registered as N313P (and later N4476S) -- stopped numerous times at "civilian-military airports including Frankfurt (72 times), Shannon (24), United Kingdom (23), Palma de Mallorca (7), Poland, Romania, Check [sic] Republic, Malta, Cyprus and Geneva."

The mention of Shannon brings us back to the case of Edward Horgan. An outspoken opponent of torture, Horgan made political waves in Ireland when he publicly resigned last year from the Green Party. In 2007, the Green Party entered the Irish government of Fianna Fáil and the Progressive Democrats. Since that time, they have been criticized for failing to keep to their ideals. Horgan's open letter spoke to his disenchantment on the renditions issue (emphasis in original):

The Green Party, led by John Gormley claimed to be staunch opponents of the wars in Iraq and Afghanistan and opponents of the abandonment of Irish neutrality at Shannon airport. They have even abandoned the pretence that the programme for Government would impose searches on CIA associated aircraft at Shannon airport.

Not only have no such planes been searched and no investigations carried out on the use of Shannon airport in the US torture rendition programme, but whistle blowers such as Edward Horgan and Conor Cregan have been unjustifiable arrested, charged and spuriously brought before the courts several times for daring to ask the Gardai to investigate the presence of CIA aircraft at Shannon. Both have been repeatedly vindicated by the Irish courts for their whistle blowing actions at Shannon airport.

Who will vindicate those lives lost and those prisoners tortured with the active complicity of the present Irish Government at Shannon airport?

Rather than being kept out of the United States, Horgan should be given a medal for his outstanding courage and forthrightness in not abandoning the battle for accountability for one of the most incredible human rights crimes perpetrated by so-called democratic state in our lifetime. The Obama administration should be ashamed for its behavior in keeping Mr. Horgan from entering this country. And Americans should be ashamed for letting this happen, as the struggle for accountability for torture is shunted aside for political expediency, or staggers under the blows of right-wing propaganda and media indifference.

For further information, see the Amnesty International report, Breaking the Chain: Ending Ireland's Role in Renditions (PDF), or if you are in Durham, NC, April 8-10, you might want to attend the public conference noted in the article, Weaving a Net of Accountability.

UK/US Asylum Seekers Find Death, Abuse, and Criminal Indifference

Also posted at The Public Record

An article in the March 14 UK Observer reports that United Kingdom's asylum immigration system is systematically denying claims of torture by asylum applicants, despite ample medical evidence by applicants of torture in their home countries. Since 2001, many asylum applicants have been sent to prison, with murderers and rapists, despite the fact they have never broken any law, making Britain the only European Union country to have such a practice.

Sonya Sceats, a spokeswoman for one charity that carries out medical assessments for the government, told the Observer: "It's very clear there is a systemic and increasing problem here. The corollary of their dismissal of independent medical evidence is that the protection [asylum] claim is invariably rejected and this means a survivor of torture is at risk of being returned to further torture or at risk of detention."

The allegations come in the wake of strong criticism last week of the UK Border Agency, which was condemned for failing to investigate claims of mistreatment by failed asylum seekers in abuse allegations up to July 2008. Ministers now plan to review the use of force against asylum seekers by British security guards after a Border Agency report on abuse conceded that serious injuries were suffered by detainees who had been handcuffed or physically restrained.

Such claims of mistreatment by asylum applicants, imprisoned by the British government, despite proof of torture, include a Zimbabwean woman, currently on hunger strike at Yarl's Wood detention center, Bedfordshire, who had been raped and beaten in Zimbabwe, and still bears copious scars of the multiple stabbings on both arms. She also alleges racist abuse by the British prison guards. A Congolese woman, who also had suffered multiple rapes and beatings in her home country, "claimed to have suffered "medical abuse" and had anxiety attacks after witnessing a naked woman dragged from her room in Yarl's Wood by private security guards, claims robustly denied by the Home Office."

"Everybody was shocked," she said. "She had no clothes on and she was photographed. I still get flashbacks."

The story follows a UK Guardian report from last week, when three Kosovo nationals leaped to their deaths from a Glascow apartment building. The Kosovoan nationals -- two men and one woman -- were asylum applicants who had their claims of asylum rejected from the UK government. [See Update/Correction at end of this posting.]

The level of desperation, as well as abuse, suffered by UK asylum seekers was documented in an Institute of Race Relations (IRR) report in September 2006, Driven to Desperate Measures (PDF).

THE IRR has catalogued a roll call of death of the 221 asylum seekers and migrants who have died either in the UK or attempting to reach the UK in the past seventeen years.*

97 died taking dangerous and highly risky methods to enter the country. With legal barriers in place to prevent them securing visas or work permits to enter legally and sanctions applying to above-board carriers, the desperate stow away on planes and lorries or attempt to cross the channel in makeshift boats or cling to trains. The number recorded here is probably only a fraction of those who have died in this way. Our figures rely on news reports and by virtue of the subject matter these deaths are not news.

70 died as an indirect consequence of the iniquities of the immigration/asylum system - either by taking their own lives when claims were not allowed, or by meeting accidental deaths evading deportation, or during the deportation itself, or by being prevented medical care, through becoming destitute in the UK.

Of these:

- 57 died at their own hand, preferring this to being returned to the country they fled, when asylum claims were turned down. And compounding the process is the fact that some of those in detention and known to be traumatised and particularly vulnerable appear not to have been provided with the medical (especially psychiatric) support they needed.

- 4 died accidentally as, in terror at what they presumed to be the arrival of deportation officials, they took evasive action.

- 1 person died during the deportation process itself, when she was asphyxiated as officers used 13 feet of tape to subdue and quieten her.

- 2 people died after being deported back to a country where they feared for their safety. The actual number is certainly far higher.

- 5 people died because of being denied healthcare for preventable medical problems.

- 1 person died destitute and unable to access services.

4 died in prison, police or psychiatric custody, where racist stereotypes appeared to induce the use of reckless control and restraint methods or where there appeared to be medical neglect.

32 died in the course of carrying out work, which, by virtue of its being part of the 'black economy' carried particular dangers and few protective rights. (The numbers listed here are probably a gross underestimate, as work-related deaths of people who are 'illegal' will often go unreported in the media.)

18 died on the streets of our cities at the hands of racists or as a consequence of altercations with a racial dimension. Often the victims had been moved, via the government's dispersal system, to areas where they were particularly isolated and vulnerable to attack.

Great Britain is not alone in treating asylum seekers with injustice. In the United States, the selection of the administrative judges who rule on asylum cases has been politicized, with dire results. In a Stanford Law Review article a few years back, "Refugee Roulette: Disparities in Asylum Adjudication", after studying hundreds of thousands of asylum cases decided by asylum officers, immigration judges, the Board of Immigration Appeal and the U.S. Courts of Appeal, the study found "significant disparities in grant rates, even when different adjudicators in the same office each considered large numbers of applications from nationals of the same country."

As in the UK, not much has changed in the United States as well, with over a quarter of all immigration judges appointed during the Bush-Cheney years. But even before that, a San Jose Mercury News investigation in 2000 found vast disparities in the way asylum applicants were treated by the system. As a report by VisaLaw explained it:

The study... reveals what many instinctively knew about the asylum process – that whether a person is granted asylum depends less on the merits of the person’s case and more on the judge before whom they present their case. The paper examined 176,465 cases that came before the 219 Immigration Judges between 1995 and 1999.

Some judges granted asylum in half of the cases they heard, while other judges granted asylum in less than two percent of cases. Some judges even routinely deny asylum to applicants from countries such as Bosnia and Somalia, where conditions mean that most applicants are granted asylum.

Situation Scandalous in the United States

Of course, like Great Britain, the United States imprisons some of their asylum applicants, many of them torture victims, in public and private prisons throughout the country. Approximately 50,000 asylum seekers were placed in penal detention in the United States from 2003 to 2009. Detention retraumatizes the tortured, and prevents the asylum applicant from making a proper case for their claims. As a Human Rights First study (PDF) in 2009 explained it:

Six years after DHS and its interior immigration enforcement component, U.S. Immigration and Customs Enforcement (known as “ICE”) took over responsibility for immigration detention, the U.S. system for detaining asylum seekers is more flawed than ever.... In 2007 alone, more than 10,000 asylum seekers were newly detained in the United States. They are held in facilities that are actual jails or are operated like jails. They are often brought in handcuffs and sometimes shackles to these facilities, where they wear prison uniforms, are guarded by officers in prison attire, visit with family and friends only through glass barriers, and have essentially no freedom of movement within the facilities. The cost of detaining these asylum seekers over the past six years has exceeded $300 million. During that time, ICE parole policies have become more restrictive, and parole rates for asylum seekers dropped from 41.3 percent in 2004 to 4.2 percent in 2007. ICE has not provided Congressionally-mandated statistics—detailing the number of asylum seekers detained, the length of their detention, and the rates of their release—in a timely or complete manner. The U.S. detention system for asylum seekers, which lacks crucial safeguards, is inconsistent with international refugee protection and human rights standards.

Those who flee torture, rape, and political or social persecution and seek protection in another country are among the most vulnerable population on the planet. The HRF report in particular documents the punitive policy of ICE towards torture victims:

Previously, it was ICE policy to “favor release of aliens who have been granted protection by an immigration judge” when the decision was being appealed by the government. However, the new parole directive issued by ICE in November 2007 rescinded prior parole guidelines— including this guidance.

Even when ICE is not appealing an immigration judge’s ruling, some refugees and other immigrants who have been found eligible for other forms of protection have been detained for several additional months. For example, some individuals who were granted relief under the Convention Against Torture—because they had shown that they were more likely than not to be victims of torture if returned to their home countries—were detained by ICE for an additional 90 days even after the judge granted them relief. Attorneys in Arizona, Florida, Illinois, Michigan, and Minnesota report that this is “often” the case in their areas. In Arizona and Florida, individuals who were determined by the U.S. to be “refugees” and were granted “withholding of removal”—and who therefore cannot be returned to the country in which they fear persecution— have also sometimes been detained for up to an additional 90 days.

Meanwhile, over 90 immigration detainees have died since ICE took over administration of the system in 2003, at least a dozen of them suicides.

Something is very wrong with a country when it treats its least powerful, most vulnerable members in such a disgraceful way. But what we hear from politicians in the UK and the United States is more often jingoistic and racist invective against "immigrants", and the population as a whole either turns away from this issue, poisoned with prejudice, or simply are ignorant of the stories of these individuals who live in their midst, but are hardly ever reported.

As a conclusion, I ask readers to consider just two stories from the HRF report, describing this terrible tragedy enacted every day by the U.S. government:

A Colombian refugee, who had been jailed, beaten, and tortured for participating in a political demonstration in Colombia, was detained in a U.S. immigration jail in Arizona for 14 months, including for over eight months after an Immigration Judge had ruled that he was eligible for asylum. The ICE attorney who had argued against the refugee’s asylum request appealed the judge’s decision to the Board of Immigration Appeals. ICE refused to release the asylum seeker while the appeal was pending. ICE denied his request for parole, even though the man had both a U.S. citizen daughter and a U.S. citizen father. He was finally released after eight additional months in detention, over two weeks after the Board of Immigration Appeals affirmed the judge’s decision granting him asylum.

* * * *

A Sri Lankan fisherman, who was a victim of kidnapping by the Liberation Tigers of Tamil Eelam (LTTE), was detained for 30 months in the United States while ICE opposed his request for asylum on the ground that his payment of his ransom consisted “material support” to the armed group. When he was finally released from detention pending a decision by the Board of Immigration Appeals, he was placed into a restrictive supervision program. He was fitted with an ankle bracelet and initially required to report on a monthly basis. Eventually, this was reduced to in-person reporting every six months. After nearly two years of compliance with all reporting requirements, following his 30 months of detention, the fisherman is still required to wear a large ankle bracelet and is subject to home visits.

Correction/Update:

This story reported that the suicides of three individuals in Glasgow were Kosovo nationals. Later reports have identified the individuals who died in the leap off the 15th story of an apartment building as Serguei Serykh, 43, his wife Tatiana and Mr. Serykh's adult stepson. A BBC story on March 13 said the family had previously been granted political asylum in Canada, but had left after an some kind of dispute with authorities there. They had recently been denied an application for asylum in the UK, and on the day they died had received a letter that they would lose their apartment, although no order for removal had yet been filed. Extrapolating from a Globe and Mail report on March 10, it appears possible that Mr. Serykh suffered from a serious mental illness.

The suicides of these desperate individuals have brought organized protests in Scotland, with marchers calling for an end to the "enforced removal of refugee families," according to the BBC report. A later article by the UK Guardian quotes the director of the Glasgow charity Positive Action in Housing, Robina Qureshi, as saying the family's death could not be attributed to psychological issues, but UK asylum policy. "The Serykhs were considered credible in Canada," Qureshi said. "Shouldn't that be good enough for us? They were going to be out on the street, destitute. What would that do to your mental state?"

What We Can Learn from the Torture Scene in Shakespeare's King Lear

Perhaps the most famous torture scene in world literature takes place at the end of Act III of King Lear. In this scene, Lear's ungrateful daughter, Regan, and her ambitious, power-hungry husband, the Duke of Cornwall, have discovered that the Earl of Gloucester, himself betrayed by his own bastard son, has proven loyal to the deposed king, Lear.

Having captured him, Cornwall and Regan torture Gloucester, supposedly to gain information. But as Shakespeare makes clear at the very beginning, the torture is not in the main about gaining information, but about exerting control, and serves as a release for Cornwall and Regan's "wrath" and sadism.

Take note, as have generations of playgoers and critics, of the role of one of the play's "bit players," the First Servant, who becomes the moral center of the scene, and recognizes, as the great powers do not, the horror of torture and its absolute prohibition among civilized persons.

CORNWALL
Go seek the traitor Gloucester,
Pinion him like a thief, bring him before us.

Exeunt other Servants

Though well we may not pass upon his life
Without the form of justice, yet our power
Shall do a courtesy to our wrath, which men
May blame, but not control. Who's there? the traitor?

Enter GLOUCESTER, brought in by two or three

REGAN
Ingrateful fox! 'tis he.

CORNWALL
Bind fast his corky arms.

GLOUCESTER
What mean your graces? Good my friends, consider
You are my guests: do me no foul play, friends.

CORNWALL
Bind him, I say.

Servants bind him

REGAN
Hard, hard. O filthy traitor!

GLOUCESTER
Unmerciful lady as you are, I'm none.

CORNWALL
To this chair bind him. Villain, thou shalt find--

REGAN plucks his beard

GLOUCESTER
By the kind gods, 'tis most ignobly done
To pluck me by the beard.

REGAN
So white, and such a traitor!

GLOUCESTER
Naughty lady,
These hairs, which thou dost ravish from my chin,
Will quicken, and accuse thee: I am your host:
With robbers' hands my hospitable favours
You should not ruffle thus. What will you do?

CORNWALL
Come, sir, what letters had you late from France?

REGAN
Be simple answerer, for we know the truth.

CORNWALL
And what confederacy have you with the traitors
Late footed in the kingdom?

REGAN
To whose hands have you sent the lunatic king? Speak.

GLOUCESTER
I have a letter guessingly set down,
Which came from one that's of a neutral heart,
And not from one opposed.

CORNWALL
Cunning.

REGAN
And false.

CORNWALL
Where hast thou sent the king?

GLOUCESTER
To Dover.

REGAN
Wherefore to Dover? Wast thou not charged at peril--

CORNWALL
Wherefore to Dover? Let him first answer that.

GLOUCESTER
I am tied to the stake, and I must stand the course.

REGAN
Wherefore to Dover, sir?

GLOUCESTER
Because I would not see thy cruel nails
Pluck out his poor old eyes; nor thy fierce sister
In his anointed flesh stick boarish fangs.
The sea, with such a storm as his bare head
In hell-black night endured, would have buoy'd up,
And quench'd the stelled fires:
Yet, poor old heart, he holp the heavens to rain.
If wolves had at thy gate howl'd that stern time,
Thou shouldst have said 'Good porter, turn the key,'
All cruels else subscribed: but I shall see
The winged vengeance overtake such children.

CORNWALL
See't shalt thou never. Fellows, hold the chair.
Upon these eyes of thine I'll set my foot.

GLOUCESTER
He that will think to live till he be old,
Give me some help! O cruel! O you gods!

REGAN
One side will mock another; the other too.

CORNWALL
If you see vengeance,--

FIRST SERVANT
Hold your hand, my lord:
I have served you ever since I was a child;
But better service have I never done you
Than now to bid you hold.

REGAN
How now, you dog!

FIRST SERVANT
If you did wear a beard upon your chin,
I'd shake it on this quarrel. What do you mean?

CORNWALL
My villain!

They draw and fight

FIRST SERVANT
Nay, then, come on, and take the chance of anger.

REGAN
Give me thy sword. A peasant stand up thus!

Takes a sword, and runs at him behind

FIRST SERVANT
O, I am slain! My lord, you have one eye left
To see some mischief on him. O!

Dies

CORNWALL
Lest it see more, prevent it. Out, vile jelly!
Where is thy lustre now?

GLOUCESTER
All dark and comfortless. Where's my son Edmund?
Edmund, enkindle all the sparks of nature,
To quit this horrid act.

REGAN
Out, treacherous villain!
Thou call'st on him that hates thee: it was he
That made the overture of thy treasons to us;
Who is too good to pity thee.

GLOUCESTER
O my follies! then Edgar was abused.
Kind gods, forgive me that, and prosper him!

REGAN
Go thrust him out at gates, and let him smell
His way to Dover.

Exit one with GLOUCESTER

How is't, my lord? how look you?

CORNWALL
I have received a hurt: follow me, lady.
Turn out that eyeless villain; throw this slave
Upon the dunghill. Regan, I bleed apace:
Untimely comes this hurt: give me your arm.

Exit CORNWALL, led by REGAN

Cornwall dies off stage, between Acts III and IV, setting the stage for the dispute between Lear's daughters, Goneril and Regan, over the villain, Gloucester's son Edmund, and ultimately to the deaths of both daughters, and indirectly, to that of Edmund as well. Shakespeare, in probably his bleakest play, of evil rampant in the world, appears to be saying that taking responsibility and action for oneself and ones world, and standing up to evil, even by those otherwise humble and of minimal power, can have profound effects upon the course of events.

While I do not advocate running swords through the government's torture plotters and policy makers, it is incumbent on all of us to take a stand against this poison that destroys the state and civil society. Tell your friends and family how much you abhor torture. Do not turn away from criticism of this administration's stance of no accountability for torture, and cozening CIA and Department of Defense policies, such as the use of psychological torture techniques such as isolation, sleep deprivation and sensory deprivation, in the Army Field Manual, or the continuing operation of secret "black" prison sites by Joint Special Forces Command.

The ensconced power of the torturers in the military, intelligence agencies, and even to some extent in the Department of Justice (consider David Margolis's recent rescue of torture advocates John Yoo, Jay Bybee, David Addington, and Steven Bradbury) means accountability will NOT take place, UNLESS there is a major upsurge of pressure from the ranks of society itself, from the average citizen, the church, synagogue or mosque worshipper, the union member and the guild practitioner, from doctors and nurses, auto workers and construction workers, from all the "First Servants" of this world who are not content to be bit players to the major actors, drenched in torture, murder, and malfeasance.

What can one do? Write letters, join anti-torture and civil liberties organizations like ACLU, Center for Constitutional Rights, Physicians for Human Rights, or the National Religious Campaign Against Torture, or send them money. Write your congressman and senator, write to President Obama. But most of all, do what you can to raise the level of disgust with these policies. Educate yourself and others. We must purge this evil from our society, and it begins with you.

Waterboarding Too Dangerous, Internal DoD Memo Reveals

Originally posted at Truthout by Jeffrey Kaye

In recent weeks, former Bush speechwriter Marc Thiessen has been on a public relations campaign defending the efficacy of waterboarding, going so far as to say that the torture technique sanctioned by the Bush administration is not only safe, but is in line with the teachings of the Catholic Church.

On Tuesday, in an interview with "Fox News," John Yoo, the former Justice Department attorney who was the principal author of legal memoranda that cleared the way for CIA interrogators to waterboard "war on terror" detainees and subject them to other brutal torture techniques, asserted that waterboarding was harmless.

In his defense of the practice, Yoo cited the thousands of US servicemen who have undergone SERE training and said, "we don't think it amounts to torture because we would not be doing it to our own soldiers otherwise."

However, a previously unreleased internal Department of Defense (DoD) memo, summarizing a review of the Navy SERE program in late February - early March 2007, reveals that there was fierce criticism within the DoD of the Navy SERE school in North Island, San Diego, for being the only SERE facility to still use waterboarding in its training program.

The memo, obtained by Truthout, stated that the use of waterboarding left students "psychologically defeated" and impaired in the ability to develop "psychological hardiness."

The attempt to remove waterboarding from Naval survival school training goes back to at least 2005, which was also the period when then-Principal Deputy Assistant Attorney Steven Bradbury was fashioning a series of legal opinions that approved waterboarding as an "enhanced interrogation" technique. Bradbury cited the use of waterboarding on numerous SERE students over the years, supposedly without reported serious injury or prolonged mental harm, as relevant in approving it as not meeting the legal criteria for torture.

The Joint Personnel Recovery Agency memo from Fort Belvoir, Virginia, is marked "For Official Use Only," and addressed to the headquarters of the departments of the Navy and the Marine Corps, and copied to the Office of the Assistant Secretary of Defense for Global Security Affairs. US Air Force Col. Brendan G. Clare signed it.

SERE stands for Survival, Evasion, Resistance, Escape, and SERE schools exist across the military services, but the Joint Personnel Recovery Agency (JPRA) is considered the "Executive Agency" for all the SERE schools. The aim of SERE "Code of Conduct" training is to prepare US military personnel for possible capture and torture by an enemy that does not follow Geneva conventions guidelines.

The Clare memo stated, in part:

3. Area of Concern: The JPRA official stance is that the water board should not be used as a physical pressure during Level C SERE training. This position is based on factors that have the potential to affect not only students but also the whole DoD SERE program. The way the water board is most often employed, it leaves students psychologically defeated with no ability to resist under pressure. Once a student is taught that they can be beaten, and there is no way to resist, it is difficult to develop psychological hardiness. None of the other schools use the water board that leaves the San Diego school as a standout.

In an attachment to Colonel Clare's memo, "Observations and Recommendations," JPRA indicates that the waterboard technique as used in the SERE schools is "inconsistent" with the JPRA philosophy that its training and procedures be "safe, effective" and provides "a positive learning experience."

The water board has always been the most extreme pressure that required intense supervision and oversight because of the inherent risks associated with its employment.... Forcing answers under the extreme duress of the water board does not teach resistance or resilience, but teaches that you can be beaten. When a student's ability to develop psychological resiliency is compromised... it may create unintended consequences regarding their perception of survivability during a real world SERE event. Based on these concerns and the risks associated with using the water board, we strongly recommend that you discontinue using it [underlined in the original].

According to a "Talking Paper" attached to the memo, JPRA addressed its concerns regarding waterboarding with the commander of the San Diego SERE program going back to 2005. The paper indicated that waterboarding continues at the California SERE School because it is "an emotional issue with former Navy POWs." The talking paper, dated October 11, 2007, was incisive regarding criticism of the North Island program. Colonel Clare indicated that three of the six SERE schools had been visited by Congressional staffers, and that "It's only a matter of time before Navy SERE School (W) is visited and the Navy has to explain and justify the continued use of this instructional method and JFCOM/JPRA is asked, why it was allowed to continue."

Furthermore, the paper indicated that JPRA felt it had "exhausted all efforts" at lower levels of bureaucracy, and indicated the issue should be brought to the attention of officers at the JFCOM [Joint Forces Command] Flag level, with an eye to preventing "an embarrassing situation" for the military, and "discretely prevent a risky and documented ineffective training technique." As of October 2007, there were no DoD restrictions on physical pressures applied during SERE training, including the waterboard.

Colonel Clare indicated that he specifically brought his concerns to Air Force Gen. Lance L. Smith, Commander, JFCOM, in December 2006, but was told that lacking anything in writing, "I should 'stay in my lane.'" (General Smith left JFCOM in November 2007 and is now retired.)

The Navy SERE school in Brunswick, Maine, discontinued the use of waterboarding in its training curriculum after a SERE psychologist found via "empirical medical data ... elevated levels of cortisol in the brain stem caused by stress levels incurred during water boarding." Cortisol is a stress hormone released by the adrenal glands as part of the body's fight-or-flight mechanisms. Excess cortisol can lead to chronic stress, impaired cognitive abilities, thyroid problems, suppressed immune functioning, high blood pressure, and other health problems.

The OPR Report and the PREAL Manual

A great deal has been written about the purported safety of waterboarding. Recently, former Vice President Dick Cheney has advocated its continued use, and told ABC "This Week" that he was "a big supporter of waterboarding."

The issue came to prominence again when the Office of Professional Responsibility (OPR) report was released February 19. The report capped a four-and-a-half-year-long investigation into misconduct by Justice Department attorneys in the writing of memos and other written materials used to justify the use of harsh interrogation techniques ordered by the White House and the CIA.

In each of the released three drafts of the OPR report, there is a short section, introduced without comment, on a May 7, 2002, SERE "Pre-Academic Laboratory (PREAL) Operating Instructions" manual. We do not know when or how the Office of Legal Counsel (OLC) obtained this manual, but it's possible that it was supplied by the same means that other JPRA/SERE material was delivered to OLC.

The August 2002 torture memos drafted by Yoo and former OLC attorney Jay Bybee, as well as memos written in 2005 by former OLC acting head Bradbury, had relied in part on assurances from the SERE program and personnel that the waterboard technique was not physically harmful, was used upon SERE students, albeit at a lesser degree of application, and was, therefore, with medical monitoring, safe to use.

The PREAL document had noted, as OPR pointed out, that SERE training was different from "real-world conditions." Under the SERE techniques, the SERE trainee could "develop a sense of 'learned helplessness'" during training.

The interrogator must recognize when a student is overly frustrated and doing a poor job resisting. At this point the interrogator must temporarily back off, and will coordinate with and ensure that the student is monitored by a controller or coordinator. (Pages 40-41 of the OPR Final Report.)

Despite the warnings that, even at SERE training school level, the dangers of waterboarding (and other SERE techniques) required monitoring, with the implication that the dangers were even worse in "real-world conditions," neither the OPR report, nor the memorandum written by Associate Deputy Attorney General David Margolis, who reviewed the final OPR report, indicated that SERE itself had decided the dangers were too great to include waterboarding in its training. It is not known when waterboarding was ceased at the bulk of the SERE schools, but it appears that it had been discontinued for the reasons described above at all but the North Island SERE school by the time Bradbury was writing his OLC opinions, which like the Yoo/Bybee memos approved the use of waterboarding.

"Learned Helplessness"

According to a related SERE document, dated September 26, 2007, written by SERE Human Factors Chief Gary Percival Ph.D., "Waterboarding consists of immobilizing an individual and pouring water over their face to simulate drowning." It elicits a gag reflex in the victim, "making the subject believe his or her death is imminent." The document noted that when waterboarding is "poorly executed," it "can cause extreme pain and damage," including broken bones from pulling against restraints. As a result, and in line with risks associated with other SERE techniques, at SERE school both medical and psychological monitoring is considered vital to protect students from injury. Dr. Percival indicated that JPRA did not support use of waterboarding in SERE training, as it "does not teach resilience or resistance," and "risks promoting learned helplessness."

As the SERE techniques were "reverse-engineered" by SERE psychologists and CIA contractors, John Mitchell, Bruce Jessen, and possibly others, for use by the CIA in early 2002 (or late 2001), the requirements for the presence of both medical and psychological personnel at the interrogation site was written into the torture protocols. Besides possible physical damage or even death, the presence of psychologists, in particular, was meant to provide monitoring capacity to prevent the acquisition of a state of "learned helplessness" in the prisoner.

A 2001 document written for the Human Factors Directorate of JPRA, "Scientific Implications for Code of Conduct Training Across the Captivity Spectrum," co-written by Dr. Percival and Dr. J. Bruce Jessen, described learned helplessness:

When students feel they are faced with unsolvable problems, their performance and retention are significantly reduced. Training models that induce learned helplessness are worse than no training at all.

According to the American Heritage Medical Dictionary, learned helplessness (LH) is "A laboratory model of depression in which exposure to a series of unforeseen adverse situations gives rise to a sense of helplessness or an inability to cope with or devise ways to escape such situations, even when escape is possible."

The original experiments on LH, performed by former psychologist and former American Psychological Association president Martin Seligman, in the mid-1960s, and published in the Journal of Experimental Psychology with Steven Maier as "Failure to Escape Traumatic Shock," exposed dogs to a situation where they were faced with inescapable electrical shocks. Within a short period of times, the dogs could not be induced to escape the situation, even when provided with a previously taught escape route. Drs. Seligman and Maier theorized that the dogs had "learned" their condition was helpless. The experimental model was extended to a human model for the induction of clinical depression and other psychological conditions.

According to New York Times reporter Scott Shane, James Mitchell was an admirer of Dr. Seligman's writings on LH, and told him so at a meeting at Dr. Seligman's home in December 2001, where "a small group of professors and law enforcement and intelligence officers gathered ... to brainstorm about Muslim extremism." CIA psychologist Kirk M Hubbard accompanied Dr. Mitchell.

According to the OPR report, in late July 2002, OLC attorneys received a psychological assessment of Abu Zubaydah "and a report from CIA psychologists asserting that the use of harsh interrogation techniques in SERE training had resulted in no adverse long-term effects" (p. 62). In the CIA's Office of Inspector General (OIG) report on the use of "enhanced interrogation techniques," (EITs) released last year, the proposal to use SERE-like techniques on Zubaydah, and other prisoners, originated in the CIA's Counter-terrorism Center and the Office of Technical Services (OTS). The report stated:

CIA's OTS obtained data on the use of the proposed EITs and their potential long-term psychological effects on detainees. OTS input was based in part on information solicited from a number of psychologists and knowledgeable academics in the area of psychopathology....

OTS also solicited input from DoD/JPRA regarding techniques used in its SERE training and any subsequent psychological effects on students.

Moreover, the CIA OIG report remarked that the subsequent Yoo/Bybee memos of August 1, 2002 were "based, in substantial part, on OTS analysis and the experience and expertise of non-Agency personnel and academics concerning whether long-term psychological effects would result from use of the proposed techniques."

It is not known if Dr. Hubbard, or Drs. Jessen or Mitchell, or even psychologist Dr. R. Scott Shumate, who accompanied Mitchell to the Thailand interrogation of Zubaydah in April 2002, were among those in the CIA who guaranteed "no adverse long-term effects" for the torture techniques proposed. Dr. Shumate was the chief operational psychologist for the CIA's Counter-terrorism Center at the time, and is reported to have left the Zubaydah interrogation in protest over the use of SERE techniques.

Dr. Seligman denied that he had any connection with the implementation of the CIA's torture program. In a recent article, he described his association with the SERE program:

I gave a three-hour lecture sponsored by SERE (the Survival, Evasion, Resistance, Escape branch of the American armed forces) at the San Diego Naval Base in May 2002. I was invited to speak about how American troops and American personnel could use what is known about learned helplessness to resist torture and evade successful interrogation by their captors. This is just what I spoke about.

I was told then that since I was (and am) a civilian with no security clearance that they could not detail American methods of interrogation with me. I was also told then that their methods did not use "violence" or "brutality." James Mitchell and Bruce Jessen were present in the audience of between 50 and 100 others at my speech, and that was, to the best of my knowledge, the sum total of my "assisting the CIA."

The San Diego base is the site where the controversial continuation of waterboarding students in SERE training continues. Dr. Seligman did not describe under what circumstances he was told he could not be given details about the US interrogation program or even why the subject came up.

Dr. Seligman now says he is "grieved and horrified" over the use of the learned helplessness theories in the construction of the CIA's torture protocols. Yet, when I wrote to Dr. Seligman in August 2007 to ask, "what is your position on the use of your research by others, and on psychologists involved in military/CIA interrogations under the current administration?," Dr. Seligman replied: "The only 'position' I am comfortable staking out is 'Good science always runs the risk of immoral application. It goes with the territory of discovery.'"

The Margolis Memo, SERE and the Waterboard

In a memo to the attorney general vacating the decision of the OPR report to charge OLC torture memo authors Yoo and Bybee with "professional misconduct" and refer them for bar discipline, Margolis supplied his own analysis of the use of the SERE material. He described SERE training as "relevant to the threshold question of whether everyone subjected to the waterboard suffers severe physical pain or suffering." Furthermore, Margolis stated that Yoo and Bybee relied on the psychological assessment of Zubaydah in order to assess if Zubaydah "would suffer severe mental pain or suffering as a result of the waterboard."

Margolis felt the Yoo/Bybee memo relied too much on the SERE experience, and not enough on the monitoring of Zubaydah or others by CIA medical personnel and psychologists, or on the CIA's psychological assessment of Zubaydah. But the evidence of the recently revealed 2007 JPRA memo on waterboarding shows that the SERE schools themselves had serious doubts that waterboarding could be made safe, even under controlled conditions. This doubt had led them to campaign vigorously within the Pentagon bureaucracy to end the use of the waterboard at the remaining SERE school where it was used.

There is no indication in his memo that Margolis was aware of this situation, nor made an attempt of his own to investigate the facts behind the CIA or OLC assertions regarding waterboarding and its use by SERE.

As for the Zubaydah psychological evaluation, it is clear the evaluation was written specifically to get permission for waterboarding, and not to undertake a serious psychological evaluation of the prisoner. The report is amateurishly and hastily written, and is mostly a compilation of claims about Zubaydah that have since been refuted or even dropped by the government, e.g. that Zubaydah was a top al-Qaeda official, that he wrote the al-Qaeda resistance manual etc.

While Margolis could say that both Yoo and Bybee were not competent to judge the validity of the psychological evaluation of Zubaydah, and that they relied on the statements of the CIA psychologists in the case, nevertheless, it is notable that the psychological evaluation was only produced after Yoo had indicated in a July 13, 2002, letter to CIA acting General Counsel John Rizzo that consultation with "experts" would constitute the "due diligence" necessary to contest a charge of "specific intent" in a torture case. A psychological evaluation could be considered such a consultation with experts. Yoo also cited as examples of such "due diligence" surveys of professional literature and "evidence gained from past experience."

"DoD Releases Records of Illegal Surveillance"

William Fisher has an important post up at Truthout. Apparently, the Department of Defense has a difficult time sticking to the law when it comes to surveillance of the American people. Once upon a time, this would have been a scandal for days and weeks across the pages of U.S. newspapers and network news broadcasts. Today, it's left to intrepid journalists, like Fisher, and brave human rights and civil liberties watchdogs, like Electronic Frontier Foundation.

From Fisher's story, DoD Releases Records of Illegal Surveillance:

Defense Department agencies improperly collected and disseminated intelligence on Planned Parenthood and a white supremacist group called the National Alliance, an Air Force briefing improperly included intelligence on an antiwar group called Alaskans for Peace and Justice, and Army Signals Intelligence in Louisiana unlawfully intercepted civilian cell phone conversations.

These are among the disclosures made this week in the release of more than 800 heavily-redacted pages of intelligence oversight reports, detailing activities that the Defense Department's (DoD) Inspector General has "reason to believe are unlawful."

The reports are the latest in an ongoing document release by more than a half-dozen intelligence agencies in response to a Freedom of Information Act (FOIA) lawsuit filed by the Electronic Frontier Foundation (EFF).

The reports, submitted to the Intelligence Oversight Board (IOB) by the Inspectors General of the various Department of Defense components, cover the period from 2001 through 2008. The IOB's role within the Executive Office of the President is to ensure that each component of the intelligence community works within the Constitution and all applicable laws....

This new release comes from various DoD components, including the Army and the Joint Chiefs of Staff. Much of the improper activity consisted of intelligence gathering on so-called "US Persons," including citizens, permanent residents and US-based organizations.

See the article for all the eye-opening details.

J. Kaye & H.P. Albarelli on Peter B Collins Radio Show: Roots of CIA torture and mind control tactics

Dr. Jeffrey Kaye, a [psychologist], and author H. P. Albarelli, Jr. talk about the upcoming trial of Khalid Sheikh Mohammed -- who we know was tortured -- and the history of CIA torture and mind control programs, including the infamous Project MK-Ultra and the use of LSD. We talk about an article they wrote for Truthout.org, available here. Kaye is a longtime critic of Bush-era policies of rendition and torture, and Albarelli’s powerful new book exposes the history back to the early 1950’s A Terrible Mistake: The Murder of Frank Olson and the CIA’s Secret Cold War Experiments. Albarelli’s book is chilling and fascinating, and shows that the US has been operating on “the dark side”, as Cheney called it, for decades. He describes the importance of the Olson case, and the large numbers of people–including children–who were slipped LSD by the CIA. [Also on the podcast,] Gary Chew reviews Roman Polanski’s new film, about a British ex-Prime Minister accused of torture, The Ghost Writer

The show was originally broadcast on March 3, 2010.

Click to listen to the podcast

Psychologists' Letter to AG Holder on OPR Report and Need for Torture Investigtions

Psychologists for an Ethical APA and Psychologists for Social Responsibility, and number of associated members have sent a letter to Attorney General Eric Holder, expressing their upset the failure of the Department of Justice to hold the authors of the infamous torture memos responsible for their actions. In addition, they ask that the actions of psychologists in constructing and implementing the torture program be fully investigated.

The letter comes on the heels of two developments. One was the American Psychological Association's decision to finally drop the "Nuremberg clause" in their ethics code, which allowed members to follow unethical behaviors if they were ordered to by law or authority. Stephen Soldz has written an excellent, brief analysis on this, which readers should follow-up.

Secondly, the New York Times has published an op-ed by Leonard S. Rubenstein and retired Brigadier General Stephen N. Xenakis, "Doctors Without Morals." Rubenstein and Xenakis charge DoJ's conclusion that the torture memos authors exercised nothing more than "poor judgment" as "questionable at best" and continue:

In contrast, the government doctors and psychologists who participated in and authorized the torture of detainees have escaped discipline, accountability or even internal investigation.

It is hardly news that medical staff at the C.I.A. and the Pentagon played a critical role in developing and carrying out torture procedures. Psychologists and at least one doctor designed or recommended coercive interrogation methods including sleep deprivation, stress positions, isolation and waterboarding. The military’s Behavioral Science Consultation Teams evaluated detainees, consulted their medical records to ascertain vulnerabilities and advised interrogators when to push harder for intelligence information....

Health professionals have a responsibility extending well beyond nonparticipation in torture; the historic maxim is, after all, “First do no harm.” These health professionals did the polar opposite.

Nevertheless, no agency — not the Pentagon, the C.I.A., state licensing boards or professional medical societies — has initiated any action to investigate, much less discipline, these individuals. They have ignored the gross and appalling violations by medical personnel. This is an unconscionable disservice to the thousands of ethical doctors and psychologists in the country’s service. It is not too late to begin investigations. They should start now.

Beltway wisdom is that investigations are dead in the water, but it doesn't have to be that way!

Here's a copy of the letter from ethical psychologists, angry at what some in their profession have done, and insistent that all actors responsible for torture be brought to account.

Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Attorney General Holder,

We are psychologists who are working together to ensure that members of our profession never again engage in torture. We are disturbed by the conclusions of the report recently released by the Office of Professional Responsibility regarding the authors of the torture memoranda and by the report’s failure to hold the authors of U.S.’ torture policy accountable. We fear the consequences this failure will have for our profession and our country. One does not need to be a lawyer to see that the authors of the torture memos, Yoo, Bybee, Rizzo, Bradbury and unknown others, were neither providing policy makers with objective advice nor offering interrogators guidance. Rather, these lawyers were attempting to legitimize the practice of torture. We are appalled that the enabling of a crime so serious that it shares status with slavery and genocide as a Jus Cogens norm, is being treated as an error in judgment.

While all Americans have reason to fear this lack of accountability -- since any future administration can similarly redefine torture when it feels the need to do so -- our profession has more to fear than most. These lawyers redefined torture so that nearly any act could have been justified if a psychologist designed the interrogation technique, approved its use, supervised the act, or even was on the site where the act took place. According to the torture memos, the use of psychologists as previously described exonerated the perpetrators of torture. Similarly, if a psychologist assured authorities that a technique did not (or would not) have a negative impact upon the mental health of the victim that was taken as proof that the act was not torture. Such actions are in direct contradiction to the purpose of our profession.

The record clearly shows that psychologists enabled waterboarding as well as combinations of stripping, sleep deprivation, chaining and diapering and that Bradbury continued to rely upon psychologists in his defense of these acts; Yoo and Bybee were not the only ones who facilitated torture. This report cannot stand.

We call on you to take the following actions:

1. Reject the conclusions of this report and file a finding of misconduct with Yoo’s, Bybee’s, Rizzo’s and Bradbury’s local bar associations.

2. Launch a new investigation into the authoring of the torture memos. This investigation should seek input from psychologists who are qualified to evaluate the mental health of detainees treated by CIA staff psychologists and CIA contractors.

3. Ask Congress to subpoena every individual who refused to cooperate with the original investigation

4. Name a special prosecutor to examine the actions of every lawyer who contributed to the U.S.’ defense of torture

5. Launch a separate investigation into the actions of psychologists to examine what role they played in crafting these legal defenses.

If you simply accept this report and take no further action, you will be letting torture facilitators off with a reprimand and will step into line with so many others who wrung their hands, gritted their teeth, and have then been complicit in our government's use of torture. You have the power to step out of this line and the power to ensure that this never happens again. If you do not use your power to ensure that crimes such as torture never recur – what is the point of holding such a significant position?

Sincerely,


Psychologists for an Ethical APA
Psychologists for Social Responsibility Psychology and Human Rights Program
Dan Aalbers
Ruth Fallenbaum
Brad Olson
Trudy Bond
Jeffrey Kaye
Ellen G. Levine
Alice Shaw
Tamerra P. Moeller
Laura Doty
Art Eccleston
Mary Pelton-Cooper
Nancy C. Arvold
John Neafsey
Elaine M. Heiby
John M. Stewart
Sharon Gadberry
Jean Maria Arrigo
Ghislaine Boulanger
Brenda LeFrancois
Mary Wollitz-Dooley
J. Lamar Freed
Gunnar Örn Ingólfsson
Andrew Phelps
Michael R. Jackson
Frank Summers
Stephen Soldz
Susan Reese
Kristi Schermerhorn
Frank Kashner
Roy Eidelson
Robert Keisner
M. Brinton Lykes
Mark S. Kane
Brigitte Ladisch
Jacqueline A Schwarz
Jay B. Pozner
Richard V. Wagner
Bernice Lott
David Moshman
Shelley Mackaman
Michael O'Loughliln
Maureen Sinnott
Martha Davis
Jancis Long
Deborah Dupré
Carol Blum
Deborah Freed
Micki Levin
Thomas Teo
Armond Aserinsky
Diane Ehrensaft
Ryan Hunt

Two More Essential Articles on OPR/OLC Torture Scandal

I'm too busy to be writing up my own article today. Luckily, there's a lot of excellent work being done right now on the torture situation, coming on the heels of revelations in the DoJ's OPR report on the torture memos, and its ignoble conclusion by DoJ fixer David Margolis to overrule the judgment of the report.

Here's an article by Marcy Wheeler at Emptywheel, who has found a crucial piece of extra evidence by carefully sifting through the OPR report, and drawing on her knowledge of the torture scandal:

What If They DID Use Mock Burial with Abu Zubaydah? 

In my last post [The Mock Burial in the OPR Report], I showed that the CIA asked DOJ to approve the use of mock burial, but DOJ refused. I noted that the ICRC report doesn’t appear to show that Abu Zubaydah was subjected to mock burial (though he was subject to confinement in both a small and a larger box).

But what if he was? What if, in the period before the torture memos, James Mitchell subjected Abu Zubaydah to mock burial, and DOJ later refused to give it retroactive approval?

After all, John Yoo specifically said that mock burial violates the torture statute. If he said that–and OPR has records–then what does that mean for those who authorized and carried out mock burial?

Wheeler goes on to describe what she found in the OPR report to back up this thesis. Raw Story picked up her analysis and now has published their own story about it.

Meanwhile, Scott Horton continues his excellent deconstruction/analysis of the Margolis memorandum which exonerated torture memo authors John Yoo and Jay Bybee, concluding their collaboration with the CIA in constructing the torture program was merely, in the matter of writing the torture memos, "bad judgment."

More Investigations for the Torture Lawyers

I am just back from the Alliance For Justice’s panel discussion on the OPR Report, at which I spoke, at the Washington office of Wilmer Hale. The show-stealer was the presentation by Georgetown professor Michael Frisch, one of the District of Columbia’s leading legal ethics experts and a long-time enforcer for the D.C. Bar Council.

Frisch eviscerated both the OPR report and the David Margolis memo. The key ethics inquiry, he argued, was under Rule 1.2(d)—whether Yoo, Bybee, and Bradbury were actually counseling a crime. In this case, the evidence that their advice was designed to facilitate torture is clear-cut, torture is a felony, and multiple players putting a scheme in place to torture is a conspiracy to torture. Yet neither the OPR report nor David Margolis even considered this question, focusing all their energy instead on two weak and rarely enforced provisions of the ethics code dealing with the duty of candor and the duty to exercise independent professional judgment....

... the [New York] Times [25 February editorial] zeroes in on what strikes me as the fishiest part of the whole DOJ ethics escapade: the “disappearance” of John Yoo’s and Patrick Philbin’s emails. Emails at an institution like the Justice Department don’t just “disappear.” Someone deleted them. Moreover, for a deletion to be effective enough to avoid an investigation, extraordinary steps have to be taken. In a criminal investigation (as should have taken place), this would have been an act of criminal obstruction. What’s out there that they don’t want us to see?

We, the American people, must demand clear, open, and fair investigations of the government's torture program, and this investigation must be allowed to go wherever it must -- into the executive branch (military, CIA, Justice Department), the Congress, private contractors, etc. A clear evil is eating away at our society, and its most serious symptom is the torture and murder of human beings, and the covering up of these crimes.

Leahy Calls One-Day, One-Witness Hearing on OPR Report: Who is Gary Grindler?

“Do you know who the Rosenbergs are?” [the agent] asked.

“I heard of them, yeah, I heard them mention,” Dr. Lee said.

“The Rosenbergs are the only people that never cooperated with the federal government in an espionage case,” she said. “You know what happened to them? They electrocuted them, Wen Ho.”

I couldn't find much online about Acting Deputy Attorney General Gary Grindler, the man tapped by Sen. Patrick Leahy to appear at the Senate Judiciary's hearing this Friday, February 26 (H/T Bob in AZ).

The one-day minimal hearing is supposed to show the Senate registering oversight on the OPR report and the Margolis intervention to clear John Yoo and Jay Bybee of "professional misconduct" in the torture memos affair.

Did I say that Mr. Grindler is also considered an excellent attorney, having won the The Best Lawyers in America award in the area of white collar criminal defense?

I also see that he played a minor role in the controversies around the Wen Ho Lee investigation and incarceration. At the time (circa 1999-2000), Mr. Grindler was Principal Associate Deputy Attorney General in Janet Reno's DoJ. Wen Ho Lee, a Taiwanese-American, had been a scientist at Los Alamos National Laboratory in New Mexico for approximately 20 years prior to his arrest.

The situation was this: the FBI and DoJ had bungled their investigation of possible spy Wen Ho Lee so badly that the supposed evidence in the case was hopelessly compromised. Nevertheless, after he was arrested, Lee was placed under onerous Special Administrative Measures (SAM). Ultimately he spent nine months in strict solitary confinement, until he agreed to a plea agreement on a felony count of improperly downloading Restricted Data. He was released from custody and served no subsequent jail time.

According to a Senate investigation in 2001:

Specifically, Dr. Lee’s confinement consisted of 24 hour supervision by a rotation of guards, permission to speak only with his attorneys and immediate family members (his wife, daughter and son) and in English only, non-contact visits from his immediate family members limited to one hour per week, no personal phone calls, and that he remain secured in his cell 24 hours a day./246/ Further, Dr. Lee was to remain in full restraints (leg and hand irons) anytime he was to be out of his cell being moved from one location to another./247/

As previously noted, Dr. Lee’s lawyers protested his conditions of confinement almost from the beginning.

An Internet site set up to support Dr. Lee elaborated on his situation:

A chain around his belly connecting to his handcuff prevents him from raising his hand above his head. We were told that two U.S. Marshals with machine guns accompanied him whenever he goes within the confine of the prison and a 'chase car' with armed Marshals follows Dr. Lee when he is moved from Santa Fe to Albuquerque and back.

The judge who initially denied Dr. Lee a pretrial release, nevertheless admonished the government “to explore ways to loosen the severe restrictions currently imposed upon Dr. Lee while preserving the security of sensitive information.” But the government wouldn't have any of that. As to the kind of interrogation Dr. Lee received, a small piece of the transcript is quoted at the lead of this article.

When Janet Reno told Gary Grindler that there were protests about Lee not getting enough exercise time, Grindler wrote a memo back to her:

A January 12, 2000 memorandum to the Attorney General from Principal Associate Deputy Attorney General Gary Grindler demonstrates that at least some of the concerns of Dr. Lee’s lawyers were taken to the highest reaches of the Justice Department. The memo notes that the Attorney General had “advised that some individuals have expressed concern about Dr. Lee’s access to exercise,” and explains that the order for Special Administrative Measures that she was being asked to sign “does not limit Dr. Lee’s access to exercise. According to the Santa Fe County Jail rules, Dr. Lee will be limited to one-hour per day of exercise, as are all administrative segregation prisoners.”

I can’t access the memo, but I wonder if Grindler mentioned that the exercise hour was conducted in shackles, and continued so until July 2000.

The Senate Judiciary Subcommittee on Department of Justice Oversight concluded:

While the government may have believed such harsh conditions were necessary, they have not made a convincing case. Judge Parker was not convinced by the government’s arguments, and granted Dr. Lee’s renewed motion for pretrial release on August 24, 2001. In his remarks at the plea hearing, Judge Parker expressed his sentiments, telling Dr. Lee that “since by the terms of the plea agreement that frees you today without conditions, it becomes clear that the Executive Branch now concedes, or should concede, that it was not necessary to confine you last December or at any time before your trial.”

…. After careful review, it becomes apparent that the government was right to reach a plea agreement with Dr. Lee, whose actions did constitute a serious threat to the national security, but was wrong to hold him virtually incommunicado in pretrial confinement for more than nine months.

Not too much to go on here, but Grindler’s association with abusive conditions of imprisonment should be explored, given the nature of his testimony and appearance in this context. But leaving aside Grindler and the issues associated with him, Leahy's hearing feels almost like a joke, a kick-in-the-teeth to those of use who are extremely concerned and disgusted about the way this country has handled the torture issue. Where is Yoo? Bybee? David Margolis or Eric Holder? These are the people you'd think any competent Congressional committee would call on the carpet. But all the power of Congress these days vis-a-vis the Executive Branch appears it could fit in a teacup.

As psychologist-activist-blogger Stephen Soldz put it in an article on the OPR report and Margolis memo:

A beautiful job, now completed by Obama-Holder Justice Department hack Margolis. Future lawless administrations now have a ready template to use to provide legal rationale for any abuses they desire.

As a postscript to this story, it should be noted that:

In June 2006, Lee received $1.6 million from the federal government and five media organizations as part of a settlement of a civil suit he had filed against them for leaking his name to the press before any formal charges had been filed against him. Federal judge James A. Parker eventually apologized to Lee for the government misconduct of which he had been the victim.