The Torture Report | Investigating the Bush Administration's Rendition Detention Interrogation Program

The Torture Report Diary

The Torture Report, an initiative of the ACLU’s National Security Project, aims to give the full account of the Bush administration’s torture program. It will bring together everything we know from government documents, investigations, press reports, witness statements and other publications into a single narrative – one that is updated regularly and subject to critical review and improvement as it unfolds.

This Diary page will guide you through newly added sections, recent additions and changes and other relevant information about the Report.

More Torture Schemes

Submitted by Larry Siems on Thu, 04/22/2010 - 13:04

It's becoming clearer by the week that the scheme described in Chapter 4 was not unique.

Last month a federal judge granted the habeas corpus petition of Uthman Abdul Rahim Mohammed Uthman, a young Yemeni detainee who was arrested in December 2001 and transferred to Guantánamo in January 2002. The U.S. alleged that Uthman, who was 20 at the time he was captured, was one of Osama bin Laden's bodyguards. That allegation rested on the statements of two other Guantánamo detainees, Sharqwi Abdu Ali Al-Hajj and Sanad Yislam Ali Al Kazimi: Hajj told interrogators he'd met Uthman at a meeting bin Laden attended in Afghanistan shortly after 9/11, and Kazimi identified a photograph of Uthman for his interrogators and said “he heard” that Uthman had become a bodyguard for bin Laden.

As with Binyam Mohamed, it turns out these statements were gathered at Bagram air base after the two men had been tortured, first in foreign dungeons and then in the CIA's “Dark Prison.”

And as in the case of Farhi Saeed Bin Mohammed—when Judge Gladys Kessler ruled that information Binyam Mohamed provided that incriminated Bin Mohammed was inadmissible because of his treatment in Pakistan, Morocco, and the Dark Prison—Judge Henry Kennedy, Jr. ruled last month in Uthman's case that

The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.

As Judge Kennedy wrote:

Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who represents Hajj, summarizing Hajj's description to her of his treatment while in custody. The declaration states that while held in Jordan , Hajj “was regularly beaten and threatened with electrocution and molestation,” and he eventually “manufactured facts” and confessed to his interrogators' allegations “in order to make the torture stop.” After transfer to a secret CIA-run prison in Kabul, Afghanistan, Hajj was reportedly “kept in complete darkness and was subject to continuous loud music.”

Uthman also submitted a declaration of Martha Rayner, a Professor at Fordham University Law School who represents Kazimi, regarding Kazimi's description of his treatment in detention. Rayner reports that while Kazimi was held in the United Arab Emirates, his interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that eventually “[h]e made up his mind to say ‘Yes' to anything the interrogators said to avoid further torture.” According to Rayner's declaration, Kazimi was relocated to a prison run by the CIA where he was always in darkness and where he was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music. Kazimi reported trying to kill himself on three occasions. He told Rayner that he realized “he could mitigate the torture by telling the interrogators what they wanted to hear.” Next, Kazimi was moved to a U.S. detention facility in Bagram , Afghanistan , where, he told Rayner, he was isolated, shackled, “psychologically tortured and traumatized by guards' desecration of the Koran” and interrogated “day and night, and very frequently.” Kazimi told Rayner he “tried very hard” to tell the interrogators at Bagram the same information he had told his previous interrogators “so they would not hurt him.”

Once again, the position of the U.S. government—this time advanced by the Obama administration—was that because the Bagram “clean team” interrogations did not involve torture, statements the men made at Bagram should be admissible. Once again, a federal judge rejected this position, finding that the treatment the men had been subjected to in Jordan and another country undermined the reliability of their statements in Bagram.

I've spent the last few months trying to absorb the full implications of the “Ponzi scheme” we covered in Chapter 4. Now, with the Uthman habeas ruling, we're left to consider what it means that this chapter was not an isolated horror, but rather one episode in a much larger story in which scores of characters—U.S. interrogators, rendition crews, U.S. and foreign government officials, foreign jailers and torturers, CIA jailers and torturers, FBI “clean teams,” U.S. military jailers at Bagram and Guantánamo, just for starters—played specific, well-defined roles again and again over the course of several years. We're faced with the scope and utter deliberateness of the scheme.

Old Claims, New “Understandings”

Submitted by Larry Siems on Wed, 04/21/2010 - 16:03

Early this month we learned that even the U.S. government has abandoned its claim that Abu Zubaydah was a top al Qaeda conspirator. In a recently declassified document filed in Abu Zubaydah's habeas corpus proceedings, the U.S. now says that “individual Government agents have disagreed with past Government assessments and analyses” and that its “understanding of [Abu Zubaydah's] activities has evolved since his capture.”

The August 1, 2002 memo authorizing his torture described Abu Zubaydah as “one of the highest ranking members of the al Qaeda terrorist organization” who “has been involved in every major terrorist operation carried out by al Qaeda.”

Now, in this document submitted to the court last October and publicly released last month—a document, ironically, that argues against releasing materials that Abu Zubaydah's lawyers are seeking to challenge the Bush administration's characterizations of their client—the Justice Department concedes that “[e]vidence indicating that Petitioner is not a member of al-Qaida” is “not inconsistent” with its new position. Moreover, the government no longer claims that Abu Zubaydah “had any direct role in or advance knowledge of the terrorist attacks of September 11, 2001” or in fact “had knowledge of any specific impending terrorist operations other than his own thwarted plans” at the time he was captured.

Compare the U.S. government's new “understanding” with this document, titled “The CIA Interrogation of Abu Zubaydah, March 2001 (sic) – Jan. 2003,” part of the new batch of documents released last week in contempt proceedings stemming from the destruction of the Abu Zubaydah and al Nashiri interrogation tapes.

We learn some news things about Abu Zubaydah's interrogation from this document. It confirms, for example, that at least one of the “Enhanced Interrogation Techniques” was used—and misused—within days of Abu Zubaydah's capture, presumably during the tug-of-war we described in Chapter 2 between FBI and CIA interrogation teams:

After consulting with NSC and DOJ, CTC/[redacted] originally approved 24-48 hours of sleep deprivation. In April 2002, CTC[redacted] learned that due to a misunderstanding that time frame had been exceeded.

However, CTC[redacted] advised that since the process did not have adverse medical effects or result in hallucination (thereby disrupting profoundly Abu Zubaydah's senses or personality) it was within legal parameters.”

We also learn that during the later use of the full range of EITs, “Where a time period was allowed for a particular technique, a timekeeper was used to ensure that the techniques was only employed within the time frames authorized.” And we are (not exactly) reassured that

It is not and has never been the Agency's intent to permit Abu Zubaydah to die in the course of interrogation and appropriately trained medical personnel have been on-site in the event an emergency medical situation arises.

Drafted as the CIA's Inspector General was reviewing the CIA's Detention, Rendition, and Interrogation program in early 2003, “The Interrogation of Abu Zubaydah” repeatedly hammers three main points: that Abu Zubaydah was a top al Qaeda lieutenant who had knowledge of impending attacks, that his interrogation thwarted those attacks, and that the interrogation was not torture. Transparently self-justifying, it's painful reading in light of everything we've seen in the first four chapters of the Report.

It's hard, for example, to finish Chapter 4 and then to come upon, and consider all the implications of, this:

Abu Zubaydah identified Jose Padilla and Binyam Muhammad as al-Qa'ida operatives who had plans to detonate a uranium-topped “dirty bomb” in either Washington , DC , or New York City . Both have been captured.

The Conclusion of Chapter 4, “A Ponzi Scheme of Torture”

Submitted by Larry Siems on Thu, 04/01/2010 - 11:26

Today we post the conclusion of “A Ponzi Scheme of Torture,” a chapter which pieces together the interconnected, serial tortures of Abu Zubaydah, Binyam Mohamed, and Jose Padilla.

In the first part of the chapter, “The Scheme,” we saw how the interrogations of these three men formed the entire basis of an alleged “dirty bomb” plot the Bush administration knew from the start was a far-fetched fiction—and how the administration resorted to torture in these interrogations not to thwart an impending attack but to produce false confessions and testimonies it would try to use against these three and others. We saw how, as always, the principle fruits of torture are bad information and more torture.

In the first installment of the Part 2, “The Story Unravels,” we followed Jose Padilla's case as it made its way through the courts.

Now, in the final installment of this shameful story, we take a similar look at the proceedings against Binyam Mohamed, who today is a free man in England, and end where we began this first full section of the Torture Report, with Abu Zubaydah, whose White House-orchestrated torture we chronicled in Chapter 2 and who remains in complete legal limbo in Guantánamo.

There have been several developments in the last two weeks relating to the ground we've covered in the report's first four chapters, and I'll cover them here in the Diary in the days ahead.

For now, though, I'd just like to encourage you to read this new section, and Chapter 4 in its entirety. It's a story everyone should know.

On Guantánamo Lawyers

Submitted by Larry Siems on Mon, 03/22/2010 - 13:06

Keep America Safe's attack ad labeling a group of Justice Department lawyers who formerly defended Guantánamo detainees “the al Qaeda 7” got people talking about such fundamentals of justice as the right to have an advocate in legal proceedings, which is certainly a good thing. (I recommend Torture Report contributor and former Guantanamo detainee defense counsel David Frakt's excellent satirical and serious pieces on this subject.) But it's really only the beginning of a conversation that needs to go much deeper than this one, with its lingering insinuation that Guantánamo housed “the worst of the worst” and that lawyers who represented Gitmo detainees and challenged the conditions and terms of their confinement were playing a loathsome but essential role in our venerated system of justice.

The real question, of course, is to what extent the limited legal proceedings afforded Guantánamo detainees can even be called a justice system.

As I've been writing the final pages of Chapter 4, which include the U.S. government's attempts to prosecute Binyam Mohamed before two generations of Military Commissions, I've been deeply and repeatedly moved by the words of the lawyers detailed to military commission cases as they sought to answer this question, not only for their clients, but for themselves and for their nation. Far from ‘mob lawyers' bent on springing their clients at all costs, they exhibit what I think we all like to consider essential qualities of the American character: a sense of fairness, honesty, and personal and national integrity.

There is, for example, the July 11, 2006 Congressional testimony of Lieutenant Commander Charles Swift, who represented Yemeni detaineed Salim Ahmed Hamdan, following the Supreme Court's ruling that Hamdan had a right to pursue a habeas corpus petition in federal court. At the hearing, Swift questioned “whether military commissions can ever actually deliver the full and fair trials promised by the President's Order. Based on the past five years the inescapable conclusion is that the commission consistently failed to meet the President's mandate for full and fair trials.”

Swift cited several glaring shortcomings in the military trial process: all of the personnel involved, including the officers serving as jurors, were handpicked by the Appointing Authority, the same official who approved the charges; the defense had a limited right to call witnesses; defense lawyers, even if they were granted access to secret government documents, couldn't share them with their clients. Most outrageously, Swift told the Senate, “the military commission system had no rule preventing the admissibility of statements obtained by coercion,” and “had inadequate rules to ensure that the Defense would receive exculpatory evidence in the government's possession”—including evidence that the information prosecutors were advancing was the fruit of torture.

Keep America Safe's ad is meant to cast doubt on the motivations of those who, like Swift, defended Guantánamo detainees before the Military Commissions and in habeas corpus proceedings. But as Swift made clear to Congress, the view he was expressing “isn't simply the view of a defense counsel who litigated in the commission system. It is also the view of some of the commission prosecutors.” Citing two tribunal prosecutors who had resigned in protest, Swift testified,

One of those prosecutors, Air Force Captain John Carr, wrote that in his experience, the commission was “a half hearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged. Another prosecutor, Air Force Major Robert Preston, lamented that “writing a motion saying that the process will be full and fair when you don't really believe it is kind of hard—particularly when you want to call yourself an officer and a lawyer.”

Swift noted that Carr was especially concerned about the government's routine practice of withholding potentially exculpatory evidence from the defense.

In the military commission system, the Prosecution had no obligation to give the Defense exculpatory evidence in the possession of other government agencies. This was significant because, according to one former military commission prosecutor, government agencies intended to deliberately exploit this gap in discovery obligations to keep the defense from obtaining exculpatory evidence. Commission prosecutor Captain John Carr wrote to the commission system's Chief Prosecutor, “In our meeting with [a government agency], they told us that the exculpatory information, if it existed, would be in the 10% that we will not get with our agreed upon searches. I again brought up the problem that this presents to us in the car on the way back from the meeting, and you told me that the rules were written in such a way as to not require that we conduct such thorough searches, and that we weren't going to worry about it.”

Some of the most compelling words on this subject come from another former Guantánamo prosecutor, Lt. Col. Darrel Vandeveld, the military prosecutor originally assigned to Binyam Mohamed's case. Vandeveld also prosecuted the case of Mohammed Jawad, an Afghan youth facing attempted murder charges for allegedly throwing a grenade into a jeep in a passing military convoy in Afghanistan, until he resigned in protest of the unfairness of the commission process on September 22, 2008. I'll quote from both his resignation statement to the Military Commission and the declaration he later filed in Jawad's successful habeas corpus petition in the conclusion to Chapter 4. But it is worth reading both documents in their entirety, for their clear, specific descriptions of both detainee abuse and misconduct in the military trials system. And it is absolutely worth keeping this conclusion to his habeas declaration in whenever we hear allegations about the motivations of Guantánamo lawyers:

Ultimately, I decided that I could no longer ethically prosecute Mr. Jawad or, in good conscience, serve as a prosecutor at OMC-P. I have taken an oath to support and defend the Constitution of the United States, and I remain confident that I have done so, spending over four of the past seven years away from my family, my home, my civilian occupation—all without any expectation of or desire for any reward greater than the knowledge that I have remained true to my word and have done my level best to rise to our Nation's defense in its time of need. I did not “quit” the Commissions or resign; instead, I personally petitioned the Army's Judge Advocate General to allow me to serve the remaining six months of my two year voluntary obligation in Afghanistan or Iraq . In the exercise of his wisdom and discretion, he permitted me to be released from active duty. However, had I been returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and another one of my very best friends in the world had been terribly wounded, I have not doubt at all—none—that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecutor. Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand. I respectfully ask this Court to find that Mr. Jawad's continued detention is unsupported by an credible evidence, any provision of the Detainee Treatment Act of 2005, the MCA, international law or our own Constitution. Mr. Jawad should be released to resume his life in a civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.

The conclusion of Chapter 4's “Ponzi Scheme of Torture” will be posted this week.

Further Lessons in Transparency and Accountability

Submitted by Larry Siems on Mon, 03/08/2010 - 12:44

The opinion the U.K. Court of Appeals handed down last month ordering the release of the seven paragraphs corroborating Binyam Mohamed's account of his treatment in Pakistan contained this paragraph:

Fourthly, the Foreign Secretary must have prepared the certificates on the basis of advice from members of the SIS and the SyS, whose involvement in the mistreatment of Mr. Mohamed has been the subject of findings by the Divisional Court . Having said that, witness B is currently under investigation by the police; and it is impossible, at any rate at this stage, to form a clear or full view as to precisely what his involvement was in the mistreatment of Mr. Mohamed.

The paragraph was part of Lord David Neuberger's concurring opinion, and when the court's decision was handed down on February 9, 2010, Lord Neuberger made clear it was a draft paragraph and that it was subject to further revision.

This past Friday, the Appeals Court issued an extraordinary document that not only contains Lord Neuberger's final version of the paragraph, but also chronicles the drama surrounding the drafting of what is known as paragraph 168 of the Court's opinion.

Here is the paragraph Lord Neuberger originally drafted:

Fourthly, it is also germane that the SyS were making it clear in March 2005, through a report from the Intelligence and Security Committee that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment). Yet that does not seem to be true: as the evidence in this case showed, at least some SyS officials appear to have a dubious record when it comes to human rights and coercive techniques, and indeed when it comes to frankness about the UK's involvement with the mistreatment of Mr Mohamed by US officials. I have in mind in particular witness B, but it appears likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by SyS personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning such mistreatment can be relied on, especially when the issue is whether contemporaneous communications to the SyS about such mistreatment should be revealed publicly. Not only is there an obvious reason for distrusting any UK Government assurance, based on SyS advice and information, because of previous “form”, but the Foreign Office and the SyS have an interest in the suppression of such information.

The original passage contained what would have been the Court opinion's most direct criticism of the conduct of the U.K. in connection with Mohamed's treatment while in U.S. custody: intelligence officials have a “dubious record” when it comes to human rights abuses and “to frankness about the UK's involvement with the mistreatment of Mr. Mohamed by U.S. officials”; their misstatements to the Foreign Secretary about what they knew raise questions about whether any statements they made about the case are credible; and in addition to this “obvious reason for distrusting any U.K. Government assurance” that relies on intelligence service information, both the Foreign Office and the intelligence services “have an interest in the suppression” of information about the extent to which the U.K. knew about, and was complicit in, his abuse.

Following established practice, the Judges had circulated their draft opinions to the parties in the lawsuit, and the Foreign Office had objected particularly strongly to this paragraph. Judge Neuberger published the short “draft” version of paragraph 126 as a placeholder while he considered the Foreign Office's objections. Last week, he largely restored the original paragraph, having clarified that he was speaking specifically about the U.K. 's involvement in Binyam Mohamed's case and not about abusive U.S. interrogations in general and removing the reference to the Foreign Office's interest in suppressing information. Here's the final version of the paragraph:

Fourthly, it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment). Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B, but the evidence in this case suggests that it is likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services' advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.

This seems, on one level, like arcane and dull court business. But there's something thrilling about this document. It has to do with the Court's insistence on doing its work to the maximum extent possible in the public eye. It has to do with one Judge's insistence on underscoring the most troublesome aspect of the Binyam Mohamed case for British citizens—that their government's intelligence services were complicit in his torture and then lied about their involvement. And it has to do with the fundamental belief that underlies this little drama about the drafting of one paragraph: that words matter, and never more than in the quest for truth and accountability.

Transnational Justice and the Binyam Mohamed Case

Submitted by Larry Siems on Mon, 03/01/2010 - 16:08

In terms of accountability, a lot of the action in the Binyam Mohamed case has been in the U.K., but as we've been following in Chapter 4 and here in the Diary, it is the recent round of back-and-forth decisions between a U.K. and U.S. court that has really served to establish the truth of Mohamed's account of torture in Pakistan, Morocco, and the CIA's secret Dark Prison.

That has me thinking about what is being called “transnational justice,” and so I asked Steven Watt, Senior Staff Attorney at the ACLU's Human Rights Program, to give me some background on this important tool and how it is being used in Binyam Mohamed's case. I thought I'd just share our conversation.

LS: Explain “transnational justice” to me—What is the idea, where does it come from, what are some significant examples?

SW: Transnational Justice is a very fluid term, but it basically involves the flow of ideas and judgments from court to court across borders, and using this flow to advocate for justice. A really good example of this would be Binyam Mohamed's case. We've got litigation here in the United States on behalf of Binyam Mohamed, there's habeas proceedings there's also a damages proceeding against Jeppesen Dataplan, and over in the UK there's mirror litigation involving access to information that's in the hands of the United Kingdom concerning his detention by US authorities in Pakistan in 2002, and there's also litigation involving Jeppesen Dataplan's UK subsidiary and its involvement in his rendition and torture in Pakistan and Morocco from 2002 to 2004.

LS: I didn't realize there was a separate Jeppesen action. Which one was filed first?

SW: Ours was filed first, and then lawyers over there had the idea, when it came to light that there was a possibility that Jeppesen's UK subsidiary had been involved in his rendition, that they would file an action that mirrored our proceedings in the United States . So I've been working very closely with them, making sure they have all the information we have, making sure their claims don't somehow conflict with the claims we've made here. It's an interchange of ideas and judgments and standards—that's what transnational justice is all about.

LS: In this case we've seen that interchange of judgments pretty vividly, the way the UK court's earlier decisions affected Judge Kessler's decision to grant the habeas corpus petition of a Guantánamo detainee because information Binyam Mohamed had supposedly provided about the detainee was tainted by Binyam's torture—and the way Judge Kessler's decision then became a major part of the U.K. court's decision to release the seven paragraphs, right?

SW: Absolutely, because what the U.K. Court of Appeal found in its most recent decision was that, of course we have to unredact those seven paragraphs in the lower court's judgment, because a court in the United States has already made findings which mirror what was in those seven paragraphs—so the claims by the U.K. government in his case before the court of appeal, that releasing the paragraphs would damage the intelligence-sharing relationship between the countries, were improbable. Since the United States had now already openly discussed exactly the same issues in Judge Kessler's opinion, why should the court prohibit their publication in the United Kingdom ?

LS: Can you talk a little bit about the using this tool of transnational justice specifically to address torture, to secure accountability for torture? It seems to me there's two parts of that, there's telling the story, establishing the truth of what happened, and there's making reparations to the person who was subjected to torture.

SW: I don't think it's really making reparations—or rather, I think it's looking at reparations in a very broad sense of the word. What was important to Binyam in the U.K. case and in the U.S. proceedings is really the vindication of his story, so transnational justice really becomes the process by which his story is verified in an official proceeding. This kind of vindication is crucially important to torture survivors in their recovery process; I've personally witnessed it time and again in many cases where I've been involved with victims of post-9/11 torture and forced disappearance policies. What they want in these court proceedings is some way of even attempting to hold those responsible accountable.

LS: Who are some of the others you have worked with?

SW: That would be starting back when I worked at the Center for Constitutional Rights representing Maher Arar, for example. His primary reason for filing proceedings which we knew were going to be incredibly difficult in the United States was some vindication of his story, a truth-telling process. That's what the litigation was about for him. Similarly, Khalid el-Masri, who, you know, had a very different personal background, but was of the same view as Maher Arar: he wanted a process by which the truth could come out and that he could somehow someday get an apology, and litigation was seen as part of that process. And then the five individuals in the Jeppesen case, all of them—they're not about seeking huge money damages which they'll never see at the end of the day, most likely, but it's a process of holding those responsible for their treatment to account.

LS: So how far is Binyam Mohamed toward that goal now? I mean, you now have a court in the U.S. and a court in the U.K. who essentially say that his account of his experiences, at least in Pakistan —

SW: Pakistan , and in Morocco . In the habeas proceedings, Judge Kessler basically found that his account seemed to be truthful, and noted that the United States authorities, when presented with it, did not dispute it, so she took his account as a given. And similarly in the U.K. now, those judges have found that their examination of 42 documents—because that's what that case was about, they analyzed 42 documents which gave an accounting of U.S. and U.K. complicity in Mohamed's rendition and detention, and they distilled that down to these seven paragraphs—and these judges in the United Kingdom also found that his version of the facts, his torture, his forced disappearance, were truthful. And that's very, very important to Binyam in his recovery process as a torture survivor.

LS: But it's short of an apology.

SW: We're nowhere near an apology, either in the U.K. or the U.S. yet, but at least in the U.K., I think it's important to note that once the court came down with its ruling and said that those seven paragraphs should be published, the U.K. government complied with that order and didn't drag this proceeding out, didn't go for example up to what is now called the Supreme Court in the United Kingdom, previously the House of Lords. They didn't actually fight the case up to the highest court as they could have done; they came clean and said, OK, let's publish them, and those seven paragraphs are published on the official U.K. government website.

LS: Do you think the U.K. 's actions will now change or affect the Jeppesen suit in the U.S? Will it make it more difficult for our government to pursue a sort of ‘state secrets' approach?

SW: I would think so. I mean one would think the judges would look at government's assertions of damage to national security in Jeppesen case, particularly in relation to Binyam Mohamed's claims, with skepticism. Because if what the government is essentially trying to cover up in the Jeppesen litigation in the U.S. is the same as what it now publicly acknowledged in the U.K.—and I can't see that it would be any different—it just makes their assertions increasingly improbable, and I think'll be viewed, as I say, with skepticism.

LS: It's interesting to think of this kind of pursuit of justice across borders as a kind of mirror image of the “war on terror's” notion of a borderless international conflict, and as a powerful tool for responding to the abuses of that approach. Do you think this is the way it's going to play out in more and more cases, and places?

SW: I think it's the way to pursue justice in a paradigm where you have the United States , both the prior administration and now this administration, trying to act outside the law by making assertions that these incidents arose outside of the United States , so therefore you can't come into a United States courtroom to assert your rights. As advocates we now need to look outside the United States . In the same way that the U.S. administrations are looking outside the United States to justify their positions, we should be looking outside the U.S. to hold them to account.

New Information on “Mock Burials”

Submitted by Larry Siems on Fri, 02/26/2010 - 13:34

Marcy Wheeler has found confirmation in the OPR Report that the CIA originally sought to include “mock burials” in its arsenal of approved Enhanced Interrogation Techniques.

In Chapter 2, we reported

As Mitchell progressed up the “force continuum,” however, the CIA wanted more than oral approval. In his account to the ICRC, Abu Zubaydah described a month-long lull in his questioning “about two and a half or three months” after he had arrived at the black site. That would have been late June or early July, 2002. So far, he had been subjected to prolonged shackling, dietary manipulation, incessant loud noise, and had spent weeks naked in a bare, frigid cell, but at that point had only faced one of the 11 proposed EITs, sleep deprivation. Before Mitchell could move further into physical abuse and waterboarding, CIA attorneys ordered a pause to give Yoo and the OLC time to prepare formal legal opinions declaring that methods that had been perfected by regimes that scorned the Geneva Conventions do not constitute torture. According to the CIA's Inspector General,

Eleven EITs were proposed for adoption in the CTC Interrogation Program. As proposed, use of EITs would be subject to a competent evaluation of the medical and psychological state of the detainee. The Agency eliminated one proposed technique – [REDACTED] – after learning from DoJ that this could delay the legal review. 25

That eleventh technique was evidently mock execution, a standard component of SERE training that is explicitly prohibited under the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment and under U.S. law codifying the Convention. The law specifically lists “the threat of imminent death” as an act that causes severe mental pain and suffering and is therefore criminal under the statute. But the phrase “mock execution” matches the redaction in the OIG's report exactly, and there are clear indications that CIA interrogators initially included it in their repertoire. At the Thai black site, Ali Soufan had erupted when he discovered Mitchell had constructed a coffin-shaped box for Zubaydah, calling Pasquale D'Amuro, the FBI assistant director for counterterrorism, and saying “I swear to God, I'm going to arrest these guys!” Newsweek reported that Mitchell told Soufan the box was for a “mock burial.” 26

As Marcy discovered and posted yesterday on Emptywheel,

PDF page 42 of the OPR Report ( searchable copy here) includes a list of the torture techniques that Mitchell and Jessen recommended be used with Abu Zubaydah. Whereas the Bybee Two Techniques memo approves ten techniques, Mitchell and Jessen recommended twelve. In other words, Mitchell and Jessen asked for two techniques to be approved that did not get specific approval.

One of these (technique 10) is diapering. We know they used diapers anyway as it was a critical element of their sleep deprivation and stress position techniques.

Technique 12 remains redacted in this report. But as I pointed out last wee, PDF page 178 of the First Draft includes an unredacted reference to the technique.

Goldsmith viewed the Yoo Memo itself as a “blank check” that could be used to justify additional EITs without further DOJ review. Although Yoo told us that he had concluded that the mock burial technique would violate the torture statute , he nevertheless told the client, according to Fredman and Rizzo, that he would “need more time” if they wanted it approved. [my emphasis]

The twelfth technique–which Mitchell and Jessen wanted approved but which Yoo excluded because of the rush to approve waterboarding–is mock burial.

There must have been significant discussion about the decision to exclude mock burial from the Bybee Two memo, because the reference to its exclusion in the report itself (PDF page 60 in the Final Report) includes a page and a half of redactions following the discussion of leaving it out.

As Marcy points out, and as we saw in Chapter 3, the failure to secure DOJ sanction for mock burials or mock executions did not stop CIA agents from trying the technique in the interrogation of Abd al-Rahim al-Nashiri at the end of 2002:

For two weeks, the “debriefer” who had been flown in from CIA headquarters oversaw this unscripted interrogation. Finally, the debriefer himself, who the Inspector General notes “was not a trained interrogator and was not authorized to use EITs,” took over:

Sometime between 28 December 2002 and 1 January 2003, the debriefer used a semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information. After discussing this plan with [redacted] the debriefer entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri's head. 13 On what was probably the same day, the debriefer used a power drill to frighten Al-Nashiri. With [redacted] consent, the debriefer entered the detainee's cell and revved the drill while the detainee stood naked and hooded. The debriefer did not touch Al-Nashiri with the power drill.” 14

…The CIA had dropped “mock executions” from its proposed list of Enhanced Interrogation Techniques precisely because even the authors of the August 1, 2002 legal opinions couldn't argue that feigning an intention to kill a prisoner is ever permissible. 16 Now the CIA was facing a situation where agents involved in its Rendition, Detention and Interrogation program had clearly committed a premeditated felony under US law.

A New Installment, and an Outrageous Lie

Submitted by Larry Siems on Wed, 02/24/2010 - 13:23

Today we post the first part of “The Story Unravels,” the epilogue to Chapter 4's “Ponzi Scheme of Torture.” This first section follows Jose Padilla's case as it made its way through the courts; the final part, which we will publish next week, takes a similar look at the Binyam Mohamed and Abu Zubaydah cases.

One of the more depressing of the many extremely depressing aspects of writing this chapter has been to see how the “dirty bomb plot” at the center of this “Ponzi scheme,” a plot that had no life outside the torture chambers, persists in arguments supporting or justifying torture.

I came across an especially pernicious example of this just about an hour ago, when I was reading through one of the documents released in connection with Justice Department's Office of Professional Responsibility's (OPR) Report on whether the authors of the torture memos violated standards of professional ethics. The document is memo-signer and now Federal Judge Jay S. Bybee's first Response to the OPR's draft report, which Bybee's attorneys forwarded to the OPR on May 4, 2009.

Among the flaws the OPR highlighted in the August 1, 2002 John Yoo-authored “Bybee memo” (PDF) was the suggestion that a CIA interrogator accused of torture could mount a “necessity defense.” “A thorough, objective, and candid discussion of the necessity defense in the context of the CIA interrogation program would have included an element-by-element analysis of how the defense would be applied to a government interrogator accused of violating the torture statute,” the OPR noted on page 211, adding in a footnote on the following page:

The Bybee Memo, in Part IV (International Decisions) briefly alluded to the “ticking time bomb” scenario....As noted above, in their OPR interviews, Bybee and Yoo both referred to the ticking time bomb hypothetical as support for their analysis of the necessity defense.

The ticking time bomb scenario is frequently advanced as moral or philosophical justification for interrogation by torture. However, other scholars have argued that the scenario is based on unrealistic assumptions and has little, if any, relevance to intelligence gathering in the real world. Reliance upon the scenario has been criticized because it assumes, among other things: (1) that a specific plot to attack exists; (2) that it will happen within hours or minutes; (3) that it will kill many people; (4) that the person in custody is known with absolute certainty to be a perpetrator of the attack; (5) that he has information that will prevent the attack; (6) that torture will produce immediate, truthful information that will prevent the attack; (7) that no other means will produce the information in time; and (8) that no other action could be taken to avoid the harm.

To our knowledge, none of the information presented to OLC about Abu Zubaydah, KSM, Al-Nashiri, or the other detainees subjected to EITs approached the level of imminence and certainty associated with the “ticking time bomb” scenario. Although the OLC attorneys had good reasons to believe that the detainees possessed valuable intelligence about terrorist operations in general, there is no indication that they had any basis to believe the CIA had specific information about terrorist operations that were underway, or that posed immediate threats.

Moreover, any reliance upon the “ticking time bomb” scenario to satisfy the imminence prong of the necessity defense would be unwarranted in this instance, as the EITs under consideration were not expected or intended to produce immediate results. Rather, the goal of the CIA interrogation program was to condition the detainee gradually in order to break down his resistance to interrogation. (Citations omitted)

It is in responding to this criticism that Bybee trots out the “dirty bomb plot.”

OPR states that the Memo should have discussed a real world situation in which a defendant could prove that he reasonably anticipated that torture would produce information directly responsible for preventing an immediate impending attack. (75)

Indeed, the OLC attorneys working on the 2002 Memo had been briefed on the apprehension of Jose Padilla on May 8, 2002. Padilla was believed to have built and planted a dirty bomb--a radiological weapon which combines radioactive material with conventional explosives--in New York City. It is easy for OPR, seven years removed from the horror of 9/11 to scoff at the notion of a ticking time bomb scenario, but the context in which these memos were written simply cannot be forgotten. (75, fn 46, emphasis added)

It is of course impossible that anyone in the administration believed Padilla had built and planted a dirty bomb in New York : he was arrested at Chicago 's O'Hare airport on arrival from Zurich after spending four years overseas. As we saw in Chapter 4, Ashcroft's first announcement of the arrest did claim that “We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,' in the United States,” but by the next day administration officials were even running away from that, sheepishly acknowledging, as Deputy Secretary of Defense Paul Wolfowitz put it, “I don't think there was actually a plot beyond some fairly loose talk and his coming in here obviously to plan further deeds.”

The OPR is right: using the ticking time bomb scenario to justify torture is factually suspect and legally dubious. That Bybee tries to use the scenario now to justify the flawed conclusions of the memos he signed is depressing, if not surprising. But for him to claim that it was the Padilla case that presented such a scenario is a simple, outrageous lie.

What Was, and Is, at Stake

Submitted by Larry Siems on Mon, 02/22/2010 - 17:41

The opinion of the UK Court of Appeal ordering the British government to release the seven previously secret paragraphs is particularly vivid in laying out what has been at stake in Binyam Mohamed's lawsuit in the UK.

When Mohamed's lawyers first filed suit in the UK in May 2008, the information contained in the 42 CIA documents those seven paragraphs summarized was potentially a matter of life and death for Mohamed, who faced the possibility of trial before a military commission in Guantánamo for plotting with Jose Padilla to blow up apartment buildings and to set off a “dirty bomb” in the US.

As Baron Igor Judge, the Lord Chief Justice of England and Wales , put it in his lead opinion (PDF),

Although Mr. Mohamed is now discharged from the danger of proceedings in the USA , whether capital, or otherwise, there was a time when he was exposed to a genuine and serious risk that if convicted he would be executed. It was to address the risk of his conviction for a capital offence that the present proceedings were launched in this country against the Foreign Secretary. The redacted paragraphs formed part of the reasons of the court in a judgment which vindicated Mr Mohamed's assertion that UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of USA authorities.

It was during that ill-treatment and torture that Mohamed had confessed to the various plots for which he stood accused; when it became clear that the documents establishing the abuse would make their way into the military commission, the US dropped the “dirty bomb” charge, and a few days later the remaining charges against Binyam Mohamed were dismissed. Three months later, Mohamed was living as a free man again in London. So, in a sense, as the Lord Chief Justice noted,

Mr. Mohamed has undoubtedly achieved the objective of the litigation he brought against the Foreign Secretary. He no longer needs the material which was in the possession of the UK authorities to achieve his acquittal. It can indeed be safely assumed that proceedings based on the confessions while he was held incommunicado at the behest of the USA authorities will never again be contemplated. It therefore follows that later events made disclosure of the redacted paragraphs “unnecessary” and “gratuitous” in the limited sense that Mr. Mohamed is no longer at risk of prosecution on a capital charge. Putting it shortly, he has won.

“That however is not the whole story,” the Lord Chief Justice continued (PDF). There was in fact more at stake. First, there is the question of judicial transparency. The seven paragraphs redacted from the UK court's judgments had summarized the treatment described in the 42 documents and concluded that the abuse would have violated British commitments under international law; the public has in interest in seeing how the court reached its conclusion:

Justice must be done between the parties. The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law. For that reason, every judge sitting in judgment is on trial.

It's more than judicial accountability, though. In a case like this one, when the conduct of the executive branch is at issue, fundamental democratic principles are at stake:

There is however a distinct aspect of the principle which goes beyond proper scrutiny of the processes of the courts and the judiciary. The principle has a wider resonance, which reflects the distinctive contribution made by the open administration of justice to what President Roosevelt described in 1941 as the “...first freedom, freedom of speech and expression”. In litigation, particularly litigation between the executive and any of its manifestations and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself. Where the court is satisfied that the executive has misconducted itself, or acted so as to facilitate misconduct by others, all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.

Finally, and no less importantly, Mohamed himself continues to have a profound stake in the case. Not being tried and executed based on a confession elicited through torture is success of a sort, but Mohamed is entitled to more. Rejecting the “attractive argument that Mr. Mohamed has nothing further to gain from publication of the redacted paragraphs,” the Lord Chief Justice insisted:

The successful party is no less entitled to know the reasons for the court's judgment than the unsuccessful parties. I have already noted the strange consequence that if the redaction is maintained, Mr. Mohamed will know less about the reasons for the court's decision than the intelligence services which, even if innocently, were involved in or facilitated the wrongdoing of which he was the victim. There is a clear interest in Mr. Mohamed knowing, and the community at large also knowing, not only that his allegations were vindicated, but also the full reasons (even if not the entirety of the evidence) which led the court to its conclusion. The redacted paragraphs are integral to the reasoning that Mr. Mohamed's entitlement to relief fell within the ambit of executive involvement in wrongdoing.

This equal access to knowledge is an important step in the process of making the victim of torture whole—a process the Lord Chief Justice notes that Mohamed is pursuing through a separate lawsuit in the UK. “Mr. Mohamed is now taking civil proceedings for damages against the UK government, in effect for their tortuous involvement in the wrongdoing of the USA authorities,” he writes, warning that if the Foreign Secretary “will not make the desired concession” to release the information Mohamed needs in that case, “the court will make whatever decision is appropriate in those proceedings.”

Seven Secret Paragraphs Released

Submitted by Larry Siems on Wed, 02/10/2010 - 14:54

Binyam Mohamed and the Search for Accountability

Submitted by Larry Siems on Fri, 02/05/2010 - 14:27

One of the interesting aspects of Binyam Mohamed's case, which is at the center of the story of Chapter 4, is that it provides a measure of how poorly the U.S. is performing on the question of accountability.

Last week The New York Times published this Reuters piece in its “World Briefing”:

The United States is among dozens of countries that have kidnapped and held terrorism suspects in secret detention over the past nine years, violating their basic human rights, a United Nations report charged Tuesday. It said that Algeria , China , Egypt , India , Iran , Russia , Sudan and Zimbabwe were also detaining security suspects or opposition members in unknown places. “On a global scale, secret detention in connection with counterterrorist policies remains a serious problem,” investigators said in a yearlong study that will be presented to the Human Rights Council in Geneva in March.

It is one of the few mentions of the United Nations (UN) report in the American press, and it conspicuously understates the report's aims and conclusions. In fact, while the UN report puts secret detention in a global and historical framework, fully half of the space it devotes to recent violations of prohibitions on secret detention concerns the conduct of the United States since 9/11.

Among these violations is the rendition of detainees to proxy detention sites in third countries. Some snippets of the report's findings:

At least 15 prisoners—mostly seized in Karachi, Pakistan, or in the Pankisi Gorge in Georgia—claim to have been rendered by the CIA to the main headquarters of Jordan's General Intelligence Department (GID, or Da'irat al-Mukhabarat al-‘Amma) in Amman, Jordan, between September 2001 and 2004. (¶144)

At least seven men were rendered to Egypt by the CIA between September 2001 and February 2003, and another was rendered to Egypt from the Syrian Arab Republic , where he had been seized at the request of the Canadian authorities. (¶146)

At least nine detainees were rendered by the CIA to the Syrian Arab Republic between December 2001 and October 2002, and held in Far Falestin, run by the Syrian Military Intelligence or Shu'bat al-Mukhabarat al-Askariyya. (¶147)

And finally,

At least three detainees were rendered to Morocco by the CIA between May and July 2002, and held in Temara prison. (¶151)

One of these three is Binyam Mohamed, whose name appears again several pages later, in a section entitled “Complicity in the practice of secret detention.” As the report's authors explain, a country is complicit in secret detention when it either asks another country to secretly detain a person or takes advantage of a secret detention situation by sending questions to the State holding the detainee to use in their interrogation. Among the complicit countries, the report finds, is

The United Kingdom in the cases of several individuals, including Binyam Mohamed, Salahuddin Amin, Zeeshan Siddiqui, Rangzieb Ahmed and Rashid Rauf. In its submission for this study the United Kingdom Government referred to ongoing and concluded judicial assessment of the cases and stressed the work of the parliamentary Intelligence and Security Committee (ISC), as well as its policy of clear opposition to secret detention. (¶159)

That one paragraph attracted more attention in the UK that the entire report, which documents exponentially more violations by the Americans, did in the United States. In fact, I only found the UN report because the UK 's reaction made more news in the US that the report itself. The Associated Press (AP), in an article rather misleadingly titled “ Authors Defend Claim on UK Secret Prisons,” reported:

The authors of a U.N. report on the use of secret prisons in the fight against terrorism defended on Wednesday their claim that Britain was among countries complicit in the practice, even as the U.K. government dismissed the allegation as unsubstantiated and irresponsible….

The report explicitly mentions Britain as a country that was complicit in secret prisons, based on the claims by former detainees who say U.K. agents provided questions for, or were present at, interrogations conducted by intelligence services of another country.

The report refers to the case of Binyam Mohamed, an Ethiopian-born British resident who was arrested in Pakistan and allegedly tortured there and in Morocco before being flown to the U.S. detention center at Guantanamo Bay in Cuba.

In its statement the British Foreign Office said: “there is no truth in the suggestion that it is our policy to collude, solicit, or participate in abuses of prisoners.” It also rejected the suggestion that wrongdoing may have been covered up.

As we've seen already in Chapter 4, and as we'll follow in more detail in the chapter's conclusion, the British government's involvement in Binyam Mohamed's rendition and interrogation is being thoroughly investigated by both the Parliament and the courts, and the courts have clearly established that UK intelligence agencies passed questions through to Mohamed's interrogators in Morocco. What the British government continues to deny is that it knew the United States had essentially disappeared Mohamed and that Mohamed was being held and interrogated in Morocco. The facts suggest otherwise, of course, and investigations continue in Britain.

It was because of these investigations that the UN report resonated in England last week and the UK government felt compelled to contest the report's conclusion about its complicity. Meanwhile, in the country whose role in the secret detention of Binyam Mohamed and hundreds of others goes beyond complicity, to that of instigator and ringleader, the U.S. government did not even feel the need to defend or explain itself publicly.

According to the AP, “A spokesman for the U.S. mission in Geneva, Dick Wilbur, said the United States was still reviewing the report.”

"A Ponzi Scheme of Torture"

Submitted by Larry Siems on Wed, 02/03/2010 - 12:17

Today we post the first of two parts of Chapter 4, “A Ponzi Scheme of Torture.”

This chapter connects the interrogations of Abu Zubaydah, Jose Padilla, and Binyam Mohamed, three people who were allegedly involved in a ‘dirty bomb' plot that grew more fantastical the more the men were tortured. It traces how torture begat torture, first because bad information extracted through abusive interrogations led to more torture and more bad information, and finally because interrogations were being conducted not only, as the Bush administration has insisted, to produce new intelligence to thwart impending attacks but also to force confessions and extract information that it would use to justify its detention and torture of others.

At the center of this Chapter's “Ponzi scheme of torture” is Binyam Mohamed, a UK-based Ethiopian émigré who was arrested in Pakistan in April 2002, abused, flown to Morocco and tortured for 18 months, then flown to a secret CIA prison in Afghanistan , where he was again tortured, and finally delivered, in September 2004, to Guantánamo. Once called Jose Padilla's accomplice in several diabolical terror plots and identified, with Abu Zubaydah, as the source of information about those planned attacks, Mohamed was released last year and is now living as a free man in London.

Part 1 of this Chapter, which we are posting today, is called “The Scheme;” Part 2, which will be posted next week, is entitled, “The Story Unravels.”

Isolation and Torture

Submitted by Larry Siems on Wed, 01/20/2010 - 13:59

It says something about the extreme isolation in which many so-called high value detainees were held, and the extreme secrecy surrounding their circumstances and treatment, that something as simple as a detainee's signature can seem startling.

This week, reading through a sequence of documents that were released to the ACLU in 2008, I found myself staring at not one, but six copies of Jose Padilla's signature.

The first two are on documents he was required to sign on his arrival at the naval brig in Charleston, South Carolina on June 10, 2002, acknowledging the brig rules (“No sitting or lying on your rack between reveille and taps unless you are on medical bedrest; likewise, you may not lie on the floor”; “All meals will be eaten in your cell; you must partake of all meals”; “You may not drill or march in military formation for any purpose except as authorized and directed by the facility commander”; etc.). The other four sign documents with the subject “Approved Request for Telephone Use,” all of which begin “You have been approved the use of the facility's telephone to call your mother for the time period specified below.” The approvals contain a list of rules for the conversation such as “The entire telephone call will be monitored” and “No discussion of the interrogation process.”

The earliest of these is dated December 6, 2004—two and one half years after he'd signed in at the brig. For almost two years of that time, Padilla's lawyers have asserted in a lawsuit he has filed against John Yoo, “Mr. Padilla was deliberately denied all contact with persons outside the military brig, including his family and lawyers. During this period, Mr. Padilla's only human contact was with interrogators during interrogation sessions, or with guards when they delivered his meals through a slot in his cell door, or escorted him to the shower or the concrete cage in which he was intermittently permitted to exercise.”

To get a sense of the effect of those kinds of conditions, all you have to do is read through the rest of the documents in that same batch. These are emails between those who were guarding Padilla and Yasar Hamdi and Ali Saleh Kahlah al-Marri—the two other detainees the U.S. held as enemy combatants in naval brigs under similar conditions—and their superior officers. Many of these messages express serious misgivings about the conditions of their detention and implore their superiors to increase their privileges and contact with the outside world.

Against a backdrop of cruel, inhuman, and degrading treatment, these are some of the most human, and humane, things that I have read so far. There are also a vivid illustration of why prolonged incommunicado detention is itself considered a form of torture.

Here is one particularly moving example, this one concerning Yasar Hamdi:

Tuesday June 03, 2003, 17:55
Subject: CARE OF DETAINEE USCIT [redacted]

I saw the detainee this morning during routine daily rounds and found him to be in low spirits and somewhat depressed. When I questioned him concerning his mood he indicated he was having problems sleeping again and continues to have the same re-occurring bad dreams as before. He indicated he feels very stressed due to the incarceration and being here now for almost (14) months, with no news pertaining to his future. He wanted me to know that he understands we are doing everything we can here at the facility to make him as comfortable as possible and that he has no complaints with my staff or their treatment of him, but that does not help how he feels and that he is finding it increasingly difficult dealing with the incarceration. I told him I had no new information pertaining to his length of stay, that we continue to push incentives as a means to keep his mind off the incarceration [redacted]…. He went on to indicate that he feels as if has been forgotten and that no one is working on getting him freed. I could only tell him this was not the case and that he needs to continue to put his faith in his god and that I and his family would view his giving up at this juncture, as being a failure and the last thing that I wanted to have happen was to send him anywhere from here as a “Basket Case,” of use to no one, to include himself. I continue to point to his family's support and the goals he has set for himself, as reasons to continue to be strong despite the circumstances and uncertainty. He indicated he would continue to endure, but he did not leave me with a good impression that he is capable of going on much longer…. Sir are there any new developments with regard to the detainee's fate that can be passed along. I know I can not give him any false hope, but I fear the rubber band is nearing its breaking point here and not totally confident I can keep his head in the game much longer. I will continue to monitor his behavior and get [redacted] and [redacted] aboard, but fear that once this individual decides to go south, there will be little if anything, I can do to bring him back around. I have directed my staff to pay close attention to his behavior, to pick up their discussions with him and that I will conduct evening rounds in an effort to assure him we are concerned about his state of mind and health and welfare.

New Morsels on the Destruction of the Tapes

Submitted by Larry Siems on Fri, 01/15/2010 - 18:20

New materials released last week in the ACLU’s ongoing FOIA proceedings seeking documents on the destruction of the torture videotapes add some details to the narrative in Chapter 3.

The materials are Vaughn indexes containing brief descriptions of 165 internal CIA electronic communications relating to the reasons behind the destruction of the tapes. The CIA continues to withhold the documents themselves, but descriptions of several of the documents are illuminating.

A few of the things we learn:

The conversation about destroying the tapes began during the torture of Abu Zubaydah. Two cables sent from the black site to CIA headquarters on August 19, 2002 discuss “lessons for the future based on CIA experience” and an August 20, 2002 cable discusses “a proposed policy regarding the use of videotapes in interrogations.”
There were extensive conversations about destroying the videotapes in December 2002, right after a CIA lawyer had traveled to the Thai black site to review the tapes and just as the CIA’s inspector general was beginning his special review of the CIA’s RDI program. This conversation, carried out in numerous cables between December 19 and the end of the month, included “proposals on how to handle the possible destruction of the videotapes” and culminated in a memo to CIA Director George Tenet on “the disposition of the videotapes.”
Chapter 3 suggested that, after the July 38, 2003 Principals meeting, the question of the tapes “seemed settled” until the publication of the Abu Ghraib photos in April 2004. In fact, the Vaughn index shows the conversation continuing even during this period, with a sequence of emails around September 22, 2008 “concerning a draft memo on the destruction of the videotapes” and a February 19, 2004 email with attachment “concerning the legalities as to whether the CIA is legally required to retain the videotapes.”
There are numerous emails in the days leading up to destruction of the videotapes on November 8, 2005, just after the Washington Post published Dana Priest’s front-page exposé of CIA secret prisons and the day before The New York Times published a story on the CIA inspector general’s damning report. The CIA is clearly bracing for these leaks: on October 31, there is a 13-page email chain “discussing whether to publically acknowledge the counterterrorism program” and on November 1, an email with attachment “that discusses the Agency’s detention and interrogation program from a legal standpoint.” There are communications orchestrating how the agency will talk about the destruction of the tapes—a November 4 email “that contains proposed language regarding the disposition of the tapes,” and a November 10 email with the subject “Language for tapes” that discusses “communication between CIA officers relating to the tapes.” Finally, there are destruction orders themselves: a one-page cable on November 8 from the black site to headquarters “requesting permission to destroy the videotapes” and a two-page cable that same day, under the subject “Approval to destroy videotapes,” “discussing a proposal and granting permission to destroy.”

Interestingly, in a related affidavit summarizing the agency’s reasons for continuing to withhold these communications, the CIA says it was willing to release parts of thirteen of the documents.

Prior to releasing the documents, however, the Agency was informed by the Department of Justice that Special Prosecutor John Durham was asserting Freedom of Information Act (FOIA) Exemption (b)(7)(a) over the proposed-for-release portions of 10 of the 13 documents that the CIA was prepared to release in part. The other three documents the CIA proposed for partial release have Congressional equities that require consultation with Congress before a final determination can be made. Therefore, all of the documents are currently withheld in full.

The three documents being withheld pending consultation with Congress relate to the February 2003 briefings of two members each of the House and Senate Intelligence Committees—the briefings that prompted Jane Harman’s letter counseling against destroying the tapes.

The 10 documents that Durham is apparently blocking from release, on the grounds that their release would interfere with an ongoing criminal investigation, are:

a 11/9/05 email with embedded cable “confirming the destruction of the videotapes that were stored at a field location”;
an 10/25/02 cable from CIA Headquarters to the field “discussing a proposal to destroy the videotapes”;
a 10/27/02 document consisting of “excerpts of two cables discussing the use of the videotapes”;
a 12/02/02 cable with the subject “Destruction of classified materials” that contains “excerpts from two cables discussing a proposal to destroy the videotapes;
a 12/03/02 cable with the same subject line “discussing the proposed destruction of classified material”;
the 11/08/05 cable requesting permission to destroy the videotapes;
the 11/08/05 cable granting permission to destroy the videotapes;
an undated memo that is a “two-page timeline” “regarding the destruction of the AZ tapes;
an undated three-page memo with the subject line “Interview Questions” that is a “list of questions regarding the CIA’s RDI program”; and
an undated document with the subject “CIA Interrogation Techniques” that is a “thirteen-page memo with handwritten marginalia discussing the CIA’s interrogation of Abu Zubaydah.”

We know from these most recent Vaughn indices, which follow similar indices of documents relating to the tapes’ destruction that the CIA has forwarded to the ACLU in recent months, that there is a substantial paper trail surrounding the destruction of the videotapes. We know Durham has been down that trail. Where is his investigation going?

"Not Well For Anyone"

Submitted by Larry Siems on Wed, 01/13/2010 - 16:25

For me, the one astonishingly honest moment of John Stewart's Daily Show interview with John Yoo two nights ago, a moment that didn't make it into the televised version, came about two and a half minutes in, when Stewart, in his way, first raises the subject of the legal memos Yoo authored.

“I read the briefs that you wrote on torture—” he begins. “And by the way, I didn't finish them, so don't tell me how it ends.”

Yoo laughs for a second, and then grows serious, leans forward, and says emphatically, “Not well for anyone.”

If Stewart had just stopped right there and pressed Yoo to unpack that remarkable admission, we might have watched a significant landmark on the road to accountability.

“That's interesting,” he might have said. “Not well for anyone. Let's expore that. You're saying, not well for those we tortured. Not well for the torturers. Not well for those who authorized or rationalized the torture. Not well for you. Not well for those who came after you, and for those now struggling with how to prosecute cases tainted by torture. Not well for me. Not well for your fellow citizens here in the studio. Not well for the country. Not well for anyone on earth.

[Pause]

“Wow. Great. I tell you what: let's forget these note cards and just spend the next half hour talking about that.”

Instead, Yoo, and the conversation, quickly retreated onto his turf, a mixture of musings on the vast elasticity of presidential powers and a fact-discredited narrative that “we had amazingly captured the number three guy in al-Qaeda, which is an amazing coup” and “the guy was resistant to interrogation.” Stewart, who at the outset conceded the argument on legal questions, saying he found the constitutional questions “gobblety-gook,” never challenged that narrative, and never brought the conversation back down to that early, startlingly human level.

The fact is, “not well for anyone” is the way torture and abuse always ends. Admitting that this is how it has ended in America 's post-9/11 experiments with torture is a huge step, and Stewart should've just let Yoo, who leaned forward to say this, actually take it.

The Fruits of Torture

Submitted by Larry Siems on Mon, 01/11/2010 - 17:01

In Chapter 4, which I'll begin posting next week, I look at how torture begat torture - how bad information extracted through abusive interrogations led to the apprehension of others, who were in turn tortured until they, too, provided bad information.

At the center of the story is Binyam Mohamed, an Ethiopian émigré living in the UK who was arrested in Pakistan in April 2002, taken into U.S. custody, flown to Morocco, where he was tortured for 18 months, then flown to a secret CIA prison in Afghanistan where he was again tortured, and finally delivered, in September 2004, to Guantanamo, where he remained until he was released last year. Binyam Mohamed, who today is a free man living in London, is one of five plaintiffs who are suing Jeppesen Dataplan Inc., a subsidiary of Boeing, for providing logistical support to the CIA's illegal extraordinary rendition flights.

One of the remarkable documents I keep referring to as I make my way through the chapter is the November 17, 2009 ruling of Federal District Judge Gladys Kessler in the habeas corpus petition of another Guantánamo detainee, Farhi Saeed Bin Mohammed. The government's case that Farhi Saeed Bin Mohammed was an enemy combatant hinged on information Binyam Mohamed had provided that they had spent time together at an al-Qaeda training camp in Afghanistan. That information was likely the fruit of torture, Judge Kessler found, and ordered the government “to take all necessary and appropriate diplomatic steps to facilitate [Farhi Saeed Bin Mohammed's] release forthwith.” (He becomes the 31 st detainee to prevail in a habeas corpus petition since the Supreme Court affirmed the right of Guantánamo prisoners to raise such claims in U.S. courts.)

In one particularly striking passage in her opinion, Judge Kessler rejects the government's assertion that because Binyam made the allegations about Farhi Saeed Bin Mohammed during relatively benign interrogations after arriving at Guantánamo, rather than during his earlier torture in Morocco and Afghanistan, the information should be admissible in the habeas corpus proceeding. Citing new studies on the neurological and psychological impact of abusive interrogations, she writes:

Torture and “enhanced interrogation techniques” employed by the government during the War on Terror have been shown to be “geared toward creating anxiety or fear in the detainee while at the same time removing any form of control from the person to create a state of total helplessness.” Metin Basoglu, M. D., PhD., et al., Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent? 64 Archives of Gen. Psychiatry 277, 283 (2007). Indeed, rates of Post-Traumatic Stress Disorder ("PTSD") in torture survivors far exceed the rate among the general population. Physicians for Human Rights, Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, 43-44; 43 n.337 (Aug. 2007), available at http://wwww.physiciansforhumanrights.org/library/documents/report s/leave-no-marks.pdf (collecting journal articles that report rates for torture victims higher than 3.6% rate of PTSD among general population).

According to a new study about to be published in a peer-reviewed journal, "prolonged and extreme stress has a deleterious effect on frontal lobe function," Shane O'Mara, Torturing the Brain: On the Folk Psychology and Folk Neurobiology Motivating "Enhanced and Coercive Interrogation Techniques" Trends in Cognitive Sciences _ (forthcoming) (manuscript at 2), available at http://download.cell.com/trends/cognitive-sciences/pdf/PIIS1364661309001... (published Sept. 24, 2009).

A common consequence of coercive interrogation techniques is "confabulation," or the "pathological production of false memories." As the author explains, "[s]tress causes heightened excitability or arousal in the brain and body. Experiencing stress causes release of stress hormones (cortisol and catecholamines. [which] provoke and control the 'fight or flight' response that, if overly prolonged, can result in compromised cognitive neurobiological function (and even tissue loss) in [the prefrontal cortex and hippocampus]." Id. at 1. Because of these physiological reactions, the brain areas function improperly, and "both memory and executive functions (intention, planning[,] and regulation of behavio[]r) can be impaired." Id. The study specifically addresses the "folk psychology that is demonstrably incorrect" underlying adoption of enhanced interrogation techniques. Id. at 1.

The author concludes that "[i]t is likely to be difficult or perhaps impossible to determine during interrogation whether the information that a suspect reveals is true: information presented by the captor to elicit responses during interrogation might inadvertently become part of the [subject's] memory, especially because [subjects] are under extreme stress and are required to tell and retell the same events that might have happened over a period of years." Id. at 2.

In this case, even though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans, and to Special Agent [redacted], there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States. Captors changed the sites of his detention, and frequently changed his location within each detention facility. He was shuttled from country to country, and interrogated and beaten without having access to counsel until arriving at Guantánamo Bay, after being re-interrogated by Special Agent [redacted]. See JE 72 (declaration of Binyam Mohamed's attorney, Clive Stafford Smith, stating that he did not meet with client until May of 2005).

From Binyam Mohamed's perspective, there was no legitimate reason to think that transfer to Guanáanamo Bay foretold more humane treatment; it was, after all, the third time that he had been forced onto a plane and shuttled to a foreign country where he would be held under United States authority. Further, throughout his detention, a constant barrage of physical and psychological abuse was employed in order to manipulate him and program him into telling investigators what they wanted to hear. It is more than plausible that, in an effort to please Special Agent [redacted] (consistent with how captors taught him how to behave), he re-told such a story, adding details, such as Petitioner's presence at training, which he thought would be helpful and, above all, would bring an end to his nightmare.

From the New Batch

Submitted by Larry Siems on Wed, 12/23/2009 - 17:28

One of the most fascinating aspects of huge caches of official documents is how, the more you look at them, the more human, and less coldly bureaucratic, they reveal themselves to be.

Last week, the Justice Department released another round of documents in response to the ACLU’s torture documents FOIA, these mainly connected to the DOJ’s Office of Inspector General’s 2008 review of the FBI’s involvement in interrogations in Guantánamo, Afghanistan, and Iraq.

Two in particular caught my eye.

The first is, on the surface, one of the least personal of the bunch. This 6-page document (which begins on page 25 of this batch), headed “Potentially Relevant Federal Criminal Statutes,” simply lists the laws under which abusive interrogators might be tried – not just the torture and war crimes statutes, but also federal laws barring assault, maiming, sexual abuse, obstruction of justice, conspiracy, and others.

The second, on the opposite end of the spectrum, is 9 pages of handwritten notes evidently summarizing interviews with FBI agents in Guantánamo (this document begins on page 13 of this batch). It includes such striking notations as:

Camp X-ray was locale where harsh techniques were used.

“if you think this is tough – you should see what’s happening in Afghanistan”

and

#63

-- During [illegible] meeting [name redacted] learned he was in hospital w/ hypothermia
-- [name redacted] asked about him
-- Colonel: not hypothermia. Low core temp & low B/P. Corpsman was present

Clear to [name redacted] that they didn’t get it.

and

BAU – not effective but also skews into abuse
-- stuff w/in boundary of their guidelines just gets out of control

It is the kind of document you can spend hours staring at, first deciphering the handwriting, then trying to connect shorthand references to what is known about the cases they refer to (#63 is Mohammed al-Qahtani), and then trying to picture the conversations the notes summarize.

And yet I keep returning to the first one, and the fact that, as Office of Legal Counsel attorneys were occupied with twisting and distorting the Torture Convention to accommodate SERE techniques and enhanced interrogation methods, someone took the time to sit down and simply list the laws prohibiting the kinds of treatment detainees were being subjected to in Guantánamo, Afghanistan, and Iraq. As such, it, too, is a very human document, striking in its intellectual and moral clarity.

Blowing Smoke

Submitted by Larry Siems on Wed, 12/16/2009 - 15:30

In one of her excellent annotations to Chapter 3, Marcy Wheeler called my attention to this document, which is simply a list that the military's Joint Personnel Recovery Agency (JPRA) prepared of "physical pressures" commonly used in the services' various "Survival, Evasion, Resistance, and Escape" (SERE) training programs. Like the JPRA memo quoted in the chapter that explicitly warned of the dangers and ineffectiveness of torture, the list was attached to a JPRA memorandum Office of Legal Counsel lawyers used to support the infamous August 1, 2002 torture memo.

As Marcy notes, one of the "pressures" on the list is blowing smoke in a detainee's face—a technique that we saw used in Chapter 2, in a January 2002 incident reported by a military interpreter in Afghanistan in 2002, and in Chapter 3, during the interrogation of Abd al-Rahim al-Nashiri in Thailand. Another is "Immersion in Water/Wetting Down," which we also saw in Chapter 3 and which obviously led to the death of the anonymous detainee at the Salt Pit site in October 2002.

And then there's this item:

Manipulation of diet: Purposeful manipulation of diet, nutrients, and vitamins can have a negative impact on the subject's general health and emotional state. Medical personnel in the POW camps in North Korea believe that a B vitamin compound was responsible, in large part, to the phenomena called "give-up-itis." Recent studies suggest the removal of certain amino acids from a diet can induce heightened levels of emotional agitation.

I now have this document pinned to the wall beside my desk -- as an easy reference to the many SERE techniques "reverse-engineered" for use in real interrogations, and as a reminder of their truly sinister origins.

Will There Be Prosecutions?

Submitted by Larry Siems on Fri, 12/11/2009 - 13:48

Today we post the fifth and final installment of Chapter 3, “Black Sites, Lies, and Videotapes.”

It is nearly two years since Attorney General Michael Mukasey made the announcement that, “Following a preliminary investigation into the destruction by CIA personnel of videotapes of detainee interrogations, the [Justice] Department's National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter.” It has been months since John Durham, the US attorney assigned to the case, called several CIA officials before a grand jury.

Of course there are the tapes, and there is the conduct that the tapes would have provided a glimpse of – conduct the tapes' destruction was meant to conceal permanently from view. As the ACLU's Jameel Jaffer noted in a blog post yesterday on Daily Kos, the next few weeks will see a new series of tests of whether there will be a full public accounting of detainee mistreatment and abuse, and whether any of those who participated in, ordered, or aided and abetted the torture and cruel, inhuman, and degrading treatment of detainees will be brought to justice.

In writing Chapter 3, I was haunted by Judge Hellerstein's comment, quoted near the end of the chapter, about the difference between the very detailed descriptions of the CIA's interrogations like this one that have been made public and their application in practice. He reached this conclusion after reading just a few of the hundreds of classified cables that describe the interrogation sessions the videotapes had recorded. So much, clearly, remains to be seen.

The Destruction of the Tapes

Submitted by Larry Siems on Wed, 12/09/2009 - 12:33

It says something about the fundamental unsoundness of the Rendition, Detention, and Interrogation program—legally, practically, and ethically—that it depended on extreme secrecy, and that breaches of that secrecy were understood to pose a major existential threat to the program itself and a serious legal threat to those charged with carrying it out.

Today's installment, the fourth of the five sections that make up Chapter 3, tracks the fate of the tapes through two periods of crisis for the Bush torture program: the first, in May and June of 2004, beginning with the completion of Helgerson's report and the release of the Abu Ghraib photos and continuing through the leak of the August 1, 2002 torture memo (one of the most tumultuous periods on torture program timeline but one through which the tapes nevertheless survived); and the second, in November 2005, when The Washington Post revealed the network of secret CIA black sites and The New York Times broke the story that gave the first public account of the inspector general's investigation and his conclusions.

The torture tapes would not survive this second spate of leaks. Descriptions of CIA cables released last month (PDF) in the ACLU's ongoing Freedom of Information Act litigation revealed that the tapes were destroyed the same day The New York Times ranthe story on Helgerson's report, November 9, 2005.

What Would I have Seen? How Would I Have Reacted?

Submitted by Larry Siems on Mon, 12/07/2009 - 19:08

Today's third installment of Chapter 3 follows CIA Inspector General John Helgerson's inquiry into the black site torture program that led up to the publication of his Special Review in May 2004—and in particular, the conclusions he reached when he reviewed the videotapes of the Thai black site interrogations. We will never be able to see those interrogation tapes, but we have Helgerson's reaction as the best guide to we would have seen and how we might have felt if we had.

It seems to me those two questions—What would I have seen? And how would I have reacted?—are the two simple questions we should all be asking about the interrogations of detainees in US custody after 9/11. The documents are full of accounts by men and women who saw what was happening and had emphatic, clear reactions that it was wrong-Helgerson in this Chapter, the unnamed soldier who worked on an interrogation team in Afghanistan and reported an abusive interrogation in Chapter 2 are just two examples. So much was done, and is still being done, to keep us from seeing what was going on. But we are not without good guides.

On The al-Nashiri Interrogation

Submitted by Larry Siems on Fri, 12/04/2009 - 15:50

Today we post the second installment of Chapter 3, which includes a closer look at the torture of Abd al-Rahim al-Nashiri.

Al-Nashiri, of course, is one of the detainees Attorney General Holder addressed in his recent announcement about the trials of several Guantánamo prisoners. Although Holder announced that at least five will be tried in federal court, Al-Nashiri is among the group who will still be tried before a military commission. A few days ago the New York Times ran an interesting article exploring the controversy surrounding the decision to try some detainees in civilian courts and some in military commissions – a decision that appears to correlate closely to the quality of evidence in the cases.

At Al-Nashiri's Combatant Status Review Hearing in Guantanamo, his Personal Representative told the Tribunal:

The Detainee states that he was tortured into confession and once he made a confession his captors were happy and they stopped torturing him. Also, the Detainee states that he made up stories during the torture in order to get it to stop. The Detainee confessed under torture to the following events:

1. The French Merchant Vessel Limburg incident.

2. The USS COLE bombing.

3. The rockets in Saudi Arabia .

4. The plan to bomb American ships in the gulf.

5. Relationship with people committing bombings in Saudi Arabia .

6. Usama Bin Laden having a nuclear bomb.

7. A plan to hijack a plane and crash it into a ship.

Al-Nashiri himself told the Tribunal, "From the time I was arrested five years ago, they have been torturing me. It happened during interviews. One time they tortured me one way and another time they tortured me in a different way."

One of those ways was the mock execution using a handgun and a drill, which we cover in more detail in today's section.

The remaining three sections of Chapter 3 will be posted on Monday, Wednesday, and Friday of next week.

Eyes in the black sites

Submitted by Larry Siems on Wed, 12/02/2009 - 16:35

Why the CIA filmed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri in its secret prison in Thailand in 2002 and why it suddenly stopped filming; why the agency went back and forth with the White House about destroying those 92 tapes, why it didn't for three years, and why it ultimately did – in many ways the tale of the videotapes tracks the arc of the whole CIA black site torture program, from favored project of a White House inner circle that literally directed the action to a public relations disaster and potential legal nightmare.

Over the next week, I will be posting Chapter 3 of the Torture Report, which begins just before the CIA switched off the cameras in the black site and ends with a court hearing in New York this September over whether the CIA would be forced to release hundreds of documents that describe what the videotapes recorded. Until they are, the best information we have on what was on the tapes – and what went on in the black sites outside the view of the cameras – comes from the May 2004 report of the CIA's Inspector General (PDF), who traveled to the Thai dungeon to watch the tapes in May, 2003.

We post the first of Chapter 3's five sections today, and will add sections every day over the next week.

"Is It Humane"?

Submitted by Larry Siems on Wed, 11/18/2009 - 16:37

This past week, David Frakt, one of our Contributors for the report, sent me the following very illuminating response to my last diary post, “How Close to the Rack and Screw.”

David served as lead defense counsel for the Office of Military Commissions and represented several Guantánamo detainees including Mohammed Jawad, who was recently released. He traces some of the phrases quoted in the “Rack and Screw” questionnaire to the court rulings where they first appeared – and he notes that in the Jawad case in particular, a court affirmed the idea, present in some form in all of the cases the questionnaire alluded to, that torture and abusive treatment seriously jeopardize the government's ability to prosecute those it has abused.

His analysis is particularly timely and valuable in light of the announcement on Friday that five Guantánamo detainees who had been held both in secret CIA prisons, where they were subjected to the so-called “enhanced interrogation techniques” (including Khalid Shaikh Mohammed, who was waterboarded 183 times) will be transferred to the United States to stand trial in New York. Much is being made of the daunting legal challenges and procedural challenges these prosecutions will face. But as the legal history David cites makes clear, many of these challenges wouldn't exist if they hadn't been tortured in the first place.

Larry–

In reading your latest post about the mystery document, I recognized many of the quotes, and wanted to share the sources with you and our readers.

1. Describe how each technique is consistent with “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them.” This is a quote from the Supreme Court opinion, County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998) ”in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them.”

2. To what extent are the techniques designed to “instill stress, hopelessness, and fear, and to break resistance.” I believe that the source of this quote is a federal appellate opinion Cooper v. Dupnik, 963 F.2d 1220, 1229 (9thCir. 1992) “ In accord with the plan, the record amply demonstrates that Cooper was subjected to Barkman's interrogation techniques designed to instill stress, hopelessness, and fear, and to break his resistance.”

This case sets forth a standard for what it takes to overcome the qualified immunity standard in a civil rights lawsuit against government officials. The Supreme Court denied certiorari on this case. Here is the Lexis-Nexis overview of Cooper v. Dupnik:

Pursuant to their plan to extract a confession to serial rapes, appellant police officers deliberately ignored appellee detainee's requests for counsel and subjected him to intense custodial interrogation. After appellees, detainee and family, brought suit under 42 U.S.C.S. § 1983 against appellants, city and officers, for violation of his U.S. Const. Amend. V and XIV rights, the trial court denied appellants' defense of qualified immunity. Appellants sought review, arguing that the interrogation contravened the Miranda standards but was not a violation of constitutional rights. The court affirmed and ruled that the privilege against self-incrimination applied to custodial questioning as well as court proceedings, that the privilege included the right to remain silent and to have counsel present, and that no immunity shielded a deliberate constitutional violation. The court also ruled that the failure to extract a confession or to charge a crime was irrelevant, that extraction of a statement with any evidential value denied due process, and that the right to remain silent was breached and due process violated effective with the physical or psychological coercion.

3. Do any of the techniques cause “severe mental distress or suffering”? This language paraphrases the Convention Against Torture, Article I: “torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession” The prohibition on torture in the CAT has been codified into U.S. criminal law in the U.S. War Crimes Act, which provides the following definition of torture: “ an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession” 18 U.S. C. § 2441 (d) (1)(A)

4. How close is each technique to the “rack and screw”? This is a quote from Rochin v. California, 342 U.S. 165, 172 (1952) , a Supreme Court case which established the premise that evidence derived from outrageous government conduct could be excluded and convictions based on such evidence could be overturned. The full quote from Rochin: “ This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents -- this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”

5. Do the techniques “offend hardened sensibilities”? Another quote from Rochin v. California , 342 U.S. 165, 172 (1952)

6. Do the techniques violate “the whole community sense of decency and fairness that has been woven by common experience into the fabric of acceptable conduct”? This is a quote from another Supreme Court case, Breithhaupt v. Abram , 352 U.S. 432, 436 (1957) : “ Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of "decency and fairness" that has been woven by common experience into the fabric of acceptable conduct. It is on this bedrock that this Court has established the concept of due process.” (A sphygmogram is a tracing made by a sphygmograph and consisting of a series of curves that correspond to the beats of the heart.)

7. Do the techniques “violate the decencies of civilized conduct”? Another quote from Rochin v. California , 342 U.S. 165, 173 (1952): “It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. These decisions are not arbitrary exceptions to the comprehensive right of States to fashion their own rules of evidence for criminal trials. They are not sports in our constitutional law but applications of a general principle. They are only instances of the general requirement that States in their prosecutions respect certain decencies of civilized conduct. Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend "a sense of justice."

8. Are the techniques “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience”? This is a quote from another U.S. Supreme Court opinion, County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998) : I n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them.

The County of Sacramento quote is a paraphrasing of Rochin v. California , “ This is conduct that shocks the conscience.”

What the series of questions in this mystery document suggests is that those reviewing the interrogation techniques were concerned that the use of the techniques could subject them to criminal charges for torture or civil lawsuits for damages, and could result in the exclusion of the evidence obtained and/or dismissal of entire charges in subsequent criminal prosecutions of the persons being interrogated utilizing the proposed techniques on the basis of a due process violation.

This questionnaire also shows the author's awareness that the Supreme Court would likely find that Constitutional due process standards would apply to detainees when ultimately tried, even in military commissions.

This series of questions highlights the importance of the President's decision that the Geneva Conventions, even Common Article 3, did not apply to those captured in the war on terror. If these standards applied, then you wouldn't need all these questions, because you would only need to ask one question about any proposed interrogation technique: “Is it humane?” (Common Article 3 requires that persons detained in an armed conflict “shall in all circumstances be treated humanely.”) “Is it humane?” is the one question you will never see in any of the Bush Administration memos.

The reason that I recognize so many of these quotes is that I used them in my motion to dismiss the charges against my client Mohammed Jawad (a former Guantánamo detainee, now released) on the basis of torture, utilizing the “outrageous government conduct” standard. The motion and government response can be found here. Although the judge did not grant the motion to dismiss, he did affirm that he had the power to do so, reaffirming the viability of this doctrine, even in military commissions. The opinion is available here.

(Emphasis added.)

How Close to the “Rack and Screw”?

Submitted by Larry Siems on Wed, 11/04/2009 - 12:18

On Friday, the government released a new round of documents in the ongoing Freedom of Information Act litigation, among them several that the CIA and Justice Department's Office of Legal Counsel claimed they'd missed on previous searches of their files.

One of these documents (PDF) is a mysterious one-page questionnaire that reads in its entirety:

Describe the importance of each technique as applied to this person. What do you reasonably hope to accomplish? Describe past successes of each technique in detail.
Describe how each technique is consistent with “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them.” Describe any other traditions – in state law, or in foreign practice – in which these techniques are used or approved.
To what extent are the techniques designed to “instill stress, hopelessness, and fear, and to break resistance.”
Do any of the techniques cause “severe mental distress or suffering”?
How close is each technique to the “rack and screw”?
Do the techniques “offend hardened sensibilities”?
Do the techniques violate “the whole community sense of decency and fairness that has been woven by common experience into the fabric of acceptable conduct”?
Do the techniques “violate the decencies of civilized conduct”?
Are the techniques “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience”

Leave aside the shock of seeing the phrase “rack and screw” in a document evidently intended for someone preparing or approving an interrogation plan. What I find deeply disturbing is the way it mirrors and encourages the kind of sophistry that pervaded the OLC's torture memos.

Take for example the phrases “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them” and “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience.” An analysis of the OLC memos (PDF) that the Senate Intelligence Committee and the Justice Department prepared jointly and declassified earlier this year describes how the OLC navigated its way through the legal landscape:

OLC also concluded that the techniques in the CIA program were not objectively “egregious” or “outrageous” in light of traditional executive behavior and contemporary practice. In reaching that conclusion, OLC reviewed U.S. judicial precedent, public military doctrine, the use of stressful techniques in SERE training, public State Department reports on the practices of other countries, and public domestic criminal practices. OLC concluded that these sources demonstrated that, in some circumstances (such as domestic criminal investigations) there was a strong tradition against the use of coercive interrogation practices, while in others (such as with SERE training) stressful interrogation techniques were deemed constitutionally permissible. OLC therefore determined that use of such techniques was not categorically inconsistent with traditional executive behavior, and concluded that under the facts and circumstances concerning the program, the use of the techniques did not constitute government behavior so egregious or outrageous as to shock the conscience in violation of the Fifth Amendment.

In other words, the only examples the OLC can point to where “contemporary practice” includes the enhanced interrogation methods are the military's SERE training – where they are used in carefully controlled scenarios to mimic the torture methods of authoritarian regimes – and in countries whose detention and interrogation practices are criticized in the U.S. State Department's annual human rights reports. And so, despite the fact that in both those situations we call the methods what they are, torture, somehow, by virtue of the fact they're used somewhere, they don't shock the conscience.

Ineffective, Short-sighted, and Wrong

Submitted by Larry Siems on Thu, 10/29/2009 - 11:11

One of the most striking things to me as I work my way through the documents is how much opposition there was to the Bush torture program, from within the administration and from men and women in the U.S. military and intelligence services, from the very beginning.

Chapter 2 recounts a showdown between an FBI interrogation team and the CIA team led by the psychologist Dr. James Mitchell in a secret CIA prison in Thailand over the treatment of Abu Zubaydah. That confrontation led FBI Director Robert Mueller to prohibit FBI interrogators from participating in any interrogations involving techniques the FBI does not normally use in questioning suspects in the United States – a policy that remained in effect throughout the Bush administration.

That policy, which came to include instructions to FBI agents to report incidents of detainee abuse, gave rise to one of the most important summary documents available, the May 2008 report by the Justice Department's Office of the Inspector General (OIG) entitled, A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq (PDF).

Recounting the clash over Zubaydah's interrogation, the OIG's report describes a 2002 meeting with Director Mueller, FBI Assistant Director for Counterterrorism Pasquale D'Amuro, and Andrew Arena, Section Chief of the FBI's International Terrorism Operations. “Arena stated that there were discussions with the FBI regarding “should we go down that track?” the report relates. “Arena told the OIG that during the meeting D'Amuro predicted that the FBI would have to testify before Congress some day and that the FBI should be able to say that it did not participate.”

The architects of the torture program often cite the atmosphere in the immediate aftermath of the September 11, 2001 terrorist attacks as a justification for harsh interrogations. CIA Director George Tenet, in a 2007 60 Minutes interview, insisted:

…So the context is it's post-9/11. I've got reports of nuclear weapons in New York City , apartment buildings that are going to be blown up, planes that are going to fly into airports all over again. Plot lines that I don't know—I don't know what's going on inside the United States. And I'm struggling to find out where the next disaster is going to occur. Everybody forgets one central context of what we lived through: the palpable fear that we felt on the basis of the fact that there was so much we did not know.

But operating in the same climate, the FBI – the one agency with real interrogation experience and a proven record of eliciting information from al-Qaeda detainees – declared from the outset that abusive interrogations were ineffective, short-sighted, and wrong.

Experimenting with Torture

Submitted by Larry Siems on Fri, 10/16/2009 - 15:35

Today we post Chapter 2 of the report, “Experimenting with Torture.”

The chapter chronicles the development of the so-called “Enhanced Interrogation Techniques” and their carefully-orchestrated application during the interrogation of Abu Zubaydah in a CIA black site in Thailand in the spring and summer of 2002. In it, Zubaydah himself speaks; his statement to the International Committee of the Red Cross (PDF), which was finally allowed to visit 14 “high value” detainees after they were transferred to Guantanamo in 2006, is one of the few first-hand accounts we have describing interrogations in the secret CIA prisons.

“I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied,” Zubaydah tells the ICRC. “It felt like they were experimenting and trying out techniques to be used later on other people.”

The more we learn about his interrogation, the more we see how right he was.

Words and Images

Submitted by Larry Siems on Thu, 10/15/2009 - 17:25

The question of the power of words versus the power of visual images is on my mind this week as I work through this section describing the interrogation of Abu Zubaydah at the secret CIA dungeon in Thailand. Ninety of the 92 videotapes the CIA destroyed in 2005 recorded that interrogation, which took place from April though August on 2002 and culminated in 83 sessions of waterboarding. Just knowing those tapes existed exerts a subtle pressure on the imagination. Now, when you read a description of Zubaydah being swung around by a collar and slammed against a wall, your mind's eye is sometimes drawn to a wider, surveillance-camera angle: he's naked, you remember.

Last week, the Center for Constitutional Rights won a court order disclosing that the government has videotapes of the interrogation of Mohammed al Qahtani. The minute-by-minute log of that 7-week interrogation in Guantánamo in late 2002 and early 2003 is essential reading to have any understanding, for example, of what “sleep deprivation” means. But it must be an altogether different experience to watch videotape of something like this:

Interrogators began telling detainee how ungrateful and grumpy he was. In order to escalate the detainee's emotions, a mask was made from an MRE box with a smiley face on it and placed on the detainee's head for a few moments. A latex glove was inflated and labeled the “sissy slap” glove. This glove was touched to the detainee's face periodically after explaining the terminology to him. The mask was placed back on the detainee's head. While wearing the mask, the team began dance instruction with the detainee. The detainee became agitated and began shouting.

Whether anyone outside of government ever sees this video of course remains to be seen. The Supreme Court is in the process of deciding whether it will hear the government's appeal of a federal court ruling ordering the release of perhaps hundreds more photographs depicting abuse of detainees in U.S. custody in Iraq and Afghanistan. Like the Bush administration, the Obama administration insists that releasing the photos would fan anti-Americanism and extremism, endangering U.S. troops in the region. Last week, House and Senate conferees moved toward endorsing that position, approving language for the defense appropriations bill that included an amendment sponsored by Joe Lieberman and Lindsey Graham allowing the Secretary of Defense to determine what images the public can see. The House will likely pass the bill later today, with the Senate likely passing it within the next in the next couple of weeks.

As we learned when photos of the abuse of detainees in Abu Ghraib were leaked to the press in 2004, images of torture and abuse do provoke powerful reactions. What we're reacting to, though, is the treatment, not the images. No amount of erasure or concealment can undo the fact that the treatment occurred – and that, in these cases, it was witnessed and recorded.

What’s In Those Cables?

Submitted by Larry Siems on Fri, 10/02/2009 - 12:29

Next week I'll be adding a section to the Report about the interrogation of Abu Zubaydah at a CIA black site.

It is the videotapes of this interrogation that the CIA destroyed in November 2005. Earlier this week, in a hearing in a contempt case arising out of the destruction of those tapes , the ACLU pressed again for the release of 580 documents that describe what they portrayed – the vast majority of which are cables sent from the black site to CIA headquarters, sometimes as many as 9 in one day, from April to November of 2002.

I've had a list of these documents in front of me as I've been working through this chapter. With so much now documented about the treatment of Abu Zubaydah, it's chilling to stare at this list and try to imagine what else these documents that the CIA still refuses to release – and the tapes no one will ever see – might reveal.

On the Contributors and books

Submitted by Larry Siems on Mon, 09/28/2009 - 12:35

As I mentioned, we’re thrilled to have several of the most knowledgeable people in the country serving as Contributors to the Report. The group includes Matthew Alexander, a former senior military interrogator who led an elite interrogation team in Iraq; David Frakt, who served most recently as Lead Defense Counsel for the Office of Military Commissions in D.C. and Guantanamo; former constitution law attorney and contributing Salon.com columnist and blogger Glenn Greenwald; Joanne Mariner, who directs Human Rights Watch's Terrorism and Counterterrorism Program; Deborah Popowski, who has worked for the Center for Constitutional Rights, the UN Special Rapporteur on Torture and the UN Committee against Torture; private investigator, attorney, and writer John Sifton; and writer and blogger Marcy Wheeler. Their contributions to what we now know about the Bush administration’s torture program have been enormous.

They will be joined at the outset by attorneys from the ACLU’s National Security Project and in the future by some of the many other researchers, writers, journalists and lawyers who are working to expose and document torture and mistreatment of detainees in U.S. custody. The feedback from these Contributors, which will appear as annotations throughout the text, is an essential part of the report-writing process.

And I also mentioned good books. Here are three indispensible ones, for starters: Jane Mayer’s The Dark Side (Doubleday, 2008); Philippe Sands’ Torture Team: Rumsfeld's Memo and the Betrayal of American Values (Palgrave Macmillan, 2008); and Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond, by Jameel Jaffer and Amrit Singh (Columbia University Press, 2007)

Piecing together Bush's torture program

Submitted by Larry Siems on Thu, 09/24/2009 - 14:04

Today we launch The Torture Report. On this site, over the next several months, we will construct a comprehensive account of the Bush administration’s torture program.

The goal is simple: to tell the whole story and to get it right. How to do this – how to bring together everything we know from tens of thousands of formerly secret documents, from official and independent investigations, from press reports and the many good books that have recently appeared, and from the growing number of first-hand accounts of those who witnessed, participated in, or suffered mistreatment, how to register it all so we can come to some conclusions – is a daunting challenge.

But it’s a challenge we all share. In a way, as the Report’s lead writer, I’m just trying to do what any one of us should be doing in the face of evidence that our elected officials presided over gross human rights violations: to piece together exactly what happened and who is responsible.

I have help, fortunately. As sections are posted, a group of expert Contributors will offer comments; you’ll see their annotations, which will include corrections, elaborations, questions, and suggestions, in-line in the text. We invite your comments as well; these will appear at the end of the chapters. The Report will be constantly updated to incorporate the best of these suggestions and the very latest information.

We begin at the beginning – the first days after the terrorist attacks of September 11, 2001. This chapter, "Origins," looks at two of the earliest actions of the Bush administration , one that literally opened a space for torture to happen and one that revealed the administration’s approach to legal barriers and restrictions.

Navigating The Torture Report

Submitted by Larry Siems on Thu, 09/24/2009 - 14:03

The Torture Reportis meant to be a one-of-a-kind, interactive resource that provides regularly updated, in-depth information and analysis on the Bush administration's torture program.

This Diary page will point you to the latest additions, changes, and improvements to the report, along with important report-related developments and news; you’ll land here whenever you visit the site. Follow the tab at the top or the chapter links at the left to reach the Report itself, and the floating menu to view expert Contributors’ annotations or to comment. The Document Search tab puts an archive of some 130,000 pages of formerly secret government documents at your disposal. Watch for additional features, including a library of first-person testimonials, in the weeks ahead.

More information about how to navigate this site and the Report can be found under the About this Project tab.