Has Obama Banned Torture?

I have an op-ed up at Al Jazeera America today analyzing the new anti-torture provisions in the 2016 NDAA (an annual military spending bill in the US that also addresses policy issues). Has President Obama stopped torture, as he promised in 2008, and what more needs to be done? To read the piece, click here.

Newsweek Article on Psychologist Torture Scandal

I have a piece up at Newsweek covering a major 542-page report, published for the first time yesterday by the New York Times, which shows that top psychologists and senior officials at the American Psychological Association collaborated with the Bush administration’s interrogation programs. Read more here.

Story in Newsweek: “Beyond Torture: The New Science of Interrogating Terrorists”

Newsweek has just published a story I wrote, accessible here. The story focuses on the Army Field Manual that, despite its name, currently regulates all national security interrogations in the US, including those by the CIA. Former interrogators and experts on interrogation criticize the manual’s methods as outdated and ineffective and call for the document to be radically revised in line with the latest scientific research.

Story at VICE News: The Bush Administration Whistleblower Who Says the US Has Not Closed the Door on Torture

VICE News recently published my interview with Col. Lawrence Wilkerson, former chief of staff to US Secretary of State, Colin Powell during the George W Bush administration. The story can be accessed here. Wilkerson discusses torture and the recently-released Senate Torture Report. He makes some startling new disclosures that the CIA held and interrogated rendition detainees on the British territory of Diego Garcia.

Interview with Noam Chomsky on Senate Torture Report

Noam Chomsky, the legendary political activist and professor of linguistics, has been writing and speaking about torture for decades. From the “dirty wars” of 1980s Central America, to the more recent abuses of the war on terror, his voice has rarely been absent. Now, in what appears to be his first interview on the subject, Professor Chomsky kindly agreed to take some questions by email about the Senate’s recently-released torture report.

Chomsky told me that he was “not really” surprised by the contents of the summary, given “all that’s been learned” about Abu Ghraib, Guantanamo, Bagram and rendition. Moreover, the Bush administration’s use of torture was not entirely without precedent. The CIA has a long history of involvement in torture, training foreign goons to use its own specially-designed torture tactics in Central America in the 1980s, for example. But, after the Second World War, torture was largely outsourced to foreign security forces so the US could keep its hands clean of direct participation. It was therefore an anomaly when CIA set up its own prisons after 9/11 and did much of the torturing itself. Chomsky, citing the work of Alfred McCoy, a distinguished historian at the University of Wisconsin, Madison, told me that, “In recent years, the US usually handed torture over to subsidiaries. The Rumsfeld-Cheney innovation has been to go back to the good old days when Americans did the dirty work themselves.”

“The roots of torture in American society are very deep,” he wrote. “The modern economy and our wealth were created by massive torture in slave labor camps (cotton plantation).  It’s also been a very frightened society, since its origins.”

Fear is a “constant theme in US history”, he wrote. “Few laughed, for example, when Ronald Reagan strapped on his cowboy boots and declared a national emergency because Nicaraguan troops were only two days march from Harlingen Texas.”

He told me that the country has long been frightened of supposedly hostile groups and tends to fear the victims of its own aggressive policies.

“It’s natural to be frightened when you are spreading havoc.  Thomas Jefferson was a model of enlightenment for his time.  But he still put a passage in the Declaration of Independence about the “merciless Indian savages” and the horrors they are inflicting on the innocent colonists.  And privately he explained that freeing slaves might lead to a war in which we would be exterminated, because each one has “ten thousand recollections” of the sadistic torture we have inflicted on them.  The crazed gun culture, particularly in the South, is probably a continuation of that. And so it continues.  Enemies everywhere ready to destroy us if we don’t destroy them first.”

For Chomsky, “Torture is immoral, period.” He has no time for “ticking time-bomb” hypotheses, in which a bomb is about to go off and torture is required to find its location. “The ticking bomb argument is close to meaningless.  I doubt that a real example can be found, and if one could, why would one expect the person dedicated to a crime to tell the truth under torture?  They’ll tell the torturer anything to stop the torture, but why the truth?”

His views mirror international law, which prohibits torture absolutely and leaves no room for ticking bomb situations. Chomsky believes there should be prosecutions for the Bush-era officials who authorized and implemented the CIA program. But he doubts there will be such accountability and sees only “tactical changes” arising from the Senate’s report. Likewise, the clearly illegal 2003 invasion of Iraq resulted in no prosecutions, even though aggression is a “vastly worse” crime than torture, according to Chomsky.

Much of the public debate around torture concerns its effectiveness, not its legal or moral implications, he noted. The media’s “relative lack of concern about legality and morality…would be shocking if it wasn’t so routine,” Chomsky wrote, asking, rhetorically, if I had seen the New York Times refer to the Iraq invasion as a crime of aggression, or remind its readers of the Nuremberg judgment.

It seems that torture has been drained of its legal meaning in US political discourse and turned into a policy option for future presidents to consider. “There is no moral or legal barrier against torture (crucially, by us or our clients),” Chomsky told me. “So if there is some reason to believe that it might accomplish our goals, why not?”

In Wake of Senate Report, Rights Groups Call for Criminal Investigation into CIA Torture

In a joint letter Human Rights Watch and the American Civil Liberties Union yesterday called on the Attorney General, Eric Holder, to appoint a special prosecutor to fully investigate potential criminal violations in connection with CIA’s Rendition, Detention and Interrogation program. The two groups join Physicians for Human Rights, which last week called on President Obama to convene a federal commission to investigate abuses by medical professionals involved in the CIA program. The New York Times also released a statement from its editorial board, “Prosecute Torturers and Their Bosses”, insisting the Obama administration launch a criminal probe (note that the paper still hesitates to describe US crimes as “torture” and, if it does, refuses as a matter of policy to use this word in its full legal sense, as I showed in a recent article at BJR and a post here).

While the Department of Justice had already conducted an investigation into potential CIA crimes since 9/11, the recently-released executive summary of the Senate’s torture report “includes significant new information relating to the commission of serious federal crimes, including torture, homicide, conspiracy, and sexual assault,” the two groups write. That being so, the Attorney General must appoint a special prosecutor, furnish him or her with the complete, 6,700-page Senate report and also provide files from the former investigation led by John Durham (which concluded in 2012 without any charges being brought).

Durham might have had access to the six million pages of internal CIA records available to the Senate, the groups write, but the Committee “has now synthesized a huge volume of information into a narrative that clarifies the extent and seriousness of criminal conduct” and indicates “a vast criminal conspiracy, under color of law, to commit torture and other serious crimes.”

Moreover, Durham seemed not have interviewed any of the CIA’s victims. “We have been unable to find any evidence that Mr. Durham or his investigators interviewed any prisoner who was subjected to the RDI program,” the letter states. “The absence or paucity of victim interviews, particularly when many of the victims remain in U.S. custody, undercuts the credibility of the decision not to indict anyone for torture-related crimes.” The groups omit to mention that the Senate did not conduct any interviews for its own inquiry, which presumably makes the case for appointing a prosecutor even stronger.

Durham had determined that the admissible evidence was not sufficient to obtain a conviction for the (alleged) crimes he was investigating. The groups speculate that some of the evidence had been rendered inadmissible by the fear of defendants disclosing state secrets. But, with the declassification of the Senate’s summary, much new information has suddenly become publicly available. “With so much information about the CIA’s program now in the public domain, presumably the calculation as to what would be admissible without disclosure of state secrets would be different now,” they write.

Furthermore, Durham’s investigation seems to have focused only on CIA officials acting outside the guidance laid down by the Office of Legal Counsel (OLC) in its now-notorious “torture memos”. But the summary yields new evidence “that senior CIA officials did not rely on OLC guidance “in good faith,” but rather they knew that the conduct amounted to illegal torture before they ever sought the guidance and went looking for legal cover.” Indeed, the document shows how CIA officials drafted a letter to the then-Attorney General, John Ashcroft, requesting a declination of prosecution in advance, and other evidence details the Agency’s unsuccessful attempt to seek a guarantee of immunity from the Criminal Division of the Justice Department (the summary provides numerous examples of CIA personnel raising concerns about the legality of the torture program). That being so, the groups write, “the argument of good faith reliance on counsel appears inapplicable to some of the officials who were involved in conceptualizing, ordering, and executing these crimes.” Nor should the lawyers who drafted the memorandums “benefit from any presumption that they were fulfilling their responsibilities in good faith,” the letter states.

The groups insist that a new investigation is urgently required as officials who devised and authorized the torture program are still gracing the airwaves defending their conduct. Failing to investigate would “contribute to the notion that torture remains a permissible policy option for future administrations; undermine the ability of the United States to advocate for human rights abroad; and compromise Americans’ faith in the rule of law at home.” Moreover, the US is obligated under the UN Convention Against Torture and the International Covenant on Civil and Political Rights to effectively investigate all instances of torture, unlawful killing and enforced disappearance, and to prosecute those responsible (including top government officials).

Such calls are likely to fall on deaf ears, as the Justice Department stated soon after the summary’s release that it will not open a new investigation. In fact the Obama administration has given no indication whatsoever that it will consider prosecuting CIA and Bush-era officials, while the President, responding to the summary, recycled his now tired mantra that the US must “look forward, not back”, defending CIA officers as “patriots” responding to the nightmarish aftermath of 9/11.In fact groups like Human Rights Watch and the ACLU, along with United Nations officials, civil liberties activists and some journalists, have been calling for investigations of the Bush torture regime for years, but each time they do so the political establishment seems less and less receptive to their demands. The Intercept‘s Liliana Segura expressed her exasperation thus:

When running for office in 2008, President Obama suggested his administration would investigate Bush-era officials for criminal misconduct, but he subsequently broke that promise by opposing all forms of accountability (including civil litigation brought by torture victims and a blue-ribbon federal commission). At least, back then, politicians were listening to calls for prosecution but, now, they have turned away and Congress seems united in its contempt for the rule of law. So The Hill reported, soon after the summary’s release, that “lawmakers on both sides of the issue have seemed opposed to the notion that either the U.S. or foreign governments should press charges against some CIA officials”. Even Senator Udall, one of the CIA’s fiercest critics, declined “to make a robust call for prosecutions either at home or abroad”, showing how deeply ingrained the principle of elite impunity has become. Needless to say, this tees things up nicely for a future administration intent on kidnapping suspects and torturing them in secret dungeons on the other side of the world. And, if this does indeed happen, then Democrats and Republicans must share the blame.

UPDATE

While the prospects for accountability in the US might be grim, there is already the chance another country will investigate. Last week the European Center for Constitutional and Human Rights filed a criminal complaint in Germany against members of the Bush administration for war crimes and called for an investigation by a German prosecutor. See here for more information.

CIA Doctors Complicit in Torture and Human Subjects Research, Say Medical Experts

In a detailed analysis of the Senate’s torture report, Physicians for Human Rights – a US-based rights group – found that CIA medical personnel might have committed war crimes by monitoring and approving the use of torture, and by conducting research on prisoners.

Some outlets had already noted the prominence of health professionals in the Senate’s summary, but PHR‘s new report, authored by a host of experienced medical professionals, offers the most thorough treatment of this subject so far. Based on its analysis of the summary, PHR finds that “health professionals played not only a central, but an essential role in the CIA torture program – to an extent not previously understood…Without the participation of health professionals, this illegal program might have been prevented.” Although the torture started with psychologists, it involved three medical professions: psychologists, physicians (including psychiatrists), and physician assistants. PHR enumerates eight categories of abuse by health professionals “that violate their ethical and legal obligations.”

For instance, the summary shows that medical professionals designed, directed and profited from the torture program. SERE psychologists James Mitchell and Bruce Jessen (referred to in the text by the pseudonyms Swigert and Dunbar) devised a list of “enhanced interrogation techniques” for CIA in the summer of 2002. These techniques were based on Dr Martin Seligman’s theory of “learned helplessness” and adopted from various tactics inflicted on trainees at the US military’s SERE (Survival, Evasion, Resistance and Escape) school, where Mitchell and Jessen had both worked.

The summary provides the fullest description yet of “the scope of Mitchell’s and Jessen’s involvement in the torture program,” according to PHR. They performed psychological assessments of prisoners prior to their torture, drew up brutal interrogation plans and then administered the techniques themselves. And they did not do this for free, either: the summary shows that Mitchell and Jessen profited handsomely from the torture program, eventually launching their own company (Mitchell, Jessen & Associates) and bagging $81 million of a mammoth $180 million contract from CIA. By 2007, the torture program was overwhelmingly outsourced to contractors (many of them from Mitchell, Jessen & Associates, according to the summary). Some CIA personnel protested about conflicts of interest, noting how Mitchell and Jessen would evaluate the effectiveness of techniques they themselves administered and stood to profit from, cashing in to the tune of $1800 per day (four times the pay of other interrogators). A racket, in other words.

In his new book, Pay Any Price, published just before the Senate released its executive summary, reporter James Risen drew on the example of Mitchell and Jessen to show how greed and ambition drove US counter-terrorism policies in the wake of 9/11. However, Risen makes clear that the psychologists were not lone rangers, but part of a much broader constellation of doctors and behavioral scientists working for the US government. In a recent article, Jeff Kaye shows that Mitchell and Jessen were closely involved with the intelligence community before they concocted “enhanced interrogation techniques”. In early 2002 they appeared with other carefully-selected scientists and intelligence professionals at a conference sponsored by the FBI and American Psychological Association (now under investigation thanks to revelations of CIA collusion published in Risen’s new book). Far from being an outsider, plucked randomly out of a hat, Mitchell was already part of the counter-terrorism fold before the Agency sent him to Thailand for Abu Zubaydah’s interrogation. Some have placed excessive blame on the contractors, implying they hijacked a panicky, innocent CIA and conned its officials into adopting torture.

Back to the summary, PHR explains that doctors inflicted harm on captives, most clearly in their use of “rectal feeding” and “rectal rehydration” (I wrote a detailed post about this recently). They also helped give legal cover for the torture program: Office of Legal Counsel lawyers had argued, in an August, 2002 memo, that “enhanced interrogation techniques” would be safe and lawful provided doctors were present to safeguard the prisoners’ health. The doctors therefore monitored torture sessions to make sure CIA’s abuses stayed within the broad legal limits laid down by the Justice Department, limits which – according to PHR – were meaningless and permitted torture and cruelty.  By assessing prisoners before and during interrogation, and deeming them to be mentally and physically fit, the doctors were effectively approving their torture. The analysis gives various examples from the Senate’s summary to support this point, including the case of two CIA detainees who broke their feet during an escape attempt. The medics initially recommended they not be placed in stress positions but, two weeks later, a physician assistant, with the approval of other OMS doctors, determined that the prisoners’ wounds were “sufficiently healed to allow being placed in the standing sleep deprivation process.” The summary also shows that doctors were present throughout the waterboarding of Khalid Sheikh Mohammed and Abu Zubaydah, recommending the former be waterboarded with saline solution to forestall the possibility of water intoxication, and suggesting the latter be transferred to a liquid diet as he was vomiting copiously in response to the waterboarding. Former CIA Director Michael Hayden insisted that Abu Zubaydah had been switched to Ensure because he was recovering from abdominal surgery. “If this were the case,” PHR states, “it raises the question of why an individual recovering from abdominal surgery would be subjected to waterboarding, to the point of vomiting and losing consciousness.”

As PHR writes, doctors should never participate in torture and to do so constitutes a gross violation of domestic and international law, along with their ethical obligation to “do no harm” . Dr Atul Gawande of Harvard Medical School responded to the revelations of medical complicity in torture with a series of fierce tweets, such as:

Even more alarming is PHR‘s contention that CIA doctors were conducting human subjects experimentation. They collected data from the interrogations and analyzed it with a view to improving the safety of the techniques; they shared this information with the Justice Department who then incorporated it into their memos legitimizing the torture. Although the doctors were, in theory, working to protect the prisoners, they were, in effect, facilitating their abuse by helping Bush lawyers justify waterboarding and other brutal practices. PHR extracts various sections in the summary where medical personnel express concern about playing this role. For example, two officers were asked to perform an independent review of the program, and responded: “… that it would not be possible to assess the effectiveness of the CIA’s enhanced interrogation techniques without violating “Federal Policy for the Protection of Human Subjects” regarding human
experimentation.” (p. 13) As Dr Steven Reisner said during a recent discussion at Al Jazeera’s The Stream, “In their zeal to protect the government against charges of torture, they actually committed an equally heinous crime, which was human subjects research.” Such research is prohibited by domestic statute and also by the Nuremberg Code (created in response to the Nazi medical experiments at Auschwitz and elsewhere). PHR writes, “If further investigation establishes that human subjects research without consent was performed systematically on detainees then such activities are violations of the Nuremberg Code and could constitute a crime against humanity.”

These assertions are not new. PHR had already raised concerns in 2010 that doctors were conducting research on prisoners and a bipartisan report found last year that doctors working for the military and CIA were complicit in torture. Moreover Mitchell’s and Jessen’s importance as architects of “enhanced interrogation” had emerged gradually in the last several years, thanks to reporting by Jane Mayer (in her book The Dark Side, for example) and Katherine Eban at Vanity Fair (see here and here). But new evidence gleaned from the Senate’s summary provides compelling proof that doctors played an indispensable role in the torture program and violated numerous laws and ethical codes in the process. In fact, as human-rights researcher Nathaniel Raymond said on Al Jazeera, “Health professionals, in their engagement in this program, actually violated more laws and ethics than the other personnel involved”. That being so, PHR calls on President Obama to establish a blue-ribbon federal commission, with full subpoena powers, to investigate the role of medical professionals in CIA torture and, if appropriate, recommend those culpable for prosecution (last week PHR had still not received a response from the administration). Given Obama’s refusal, throughout his presidency, to hold Bush-era torturers accountable for their crimes, such an inquiry is unlikely to get off the ground, effectively meaning that the egregious legal and ethical violations documented by PHR will go unpunished. This not only has grave implications for the rule of law in America, but also increases the likelihood that such atrocities will repeat themselves.

UPDATE

Democracy Now hosted a long discussion today about the role of health professionals in the CIA torture program. The show featured Nathaniel Raymond – one of the co-authors of PHR‘s analysis – who described the involvement of doctors in torture after 9/11. Raymond also talked about the ongoing (and aforementioned) investigation into the American Psychological Association which, he says, was “potentially engaged in racketeering related to its relationship with CIA and White House officials”.