More on the Press and the Question of Torture in the Army Field Manual

This is second of two articles revisiting work I did on the "selling" of the Bush Administration's rewrite of the Army Field Manual (AFM) on intelligence interrogations. As the first article showed, while beat reporters at the Pentagon knew something weird was going on with the introduction of the new AFM regulations, particularly around the use of sensory deprivation as outlined in the manual's Appendix M, none of that information made it into the mainstream press accounts on the September 2006 introduction of the revised AFM.

In my second article from January 2009 (originally posted at Invictus), I looked at the how the foreign press interpreted the Pentagon's introduction of the new interrogation manual. Similar to the domestic press, the foreign press quizzed Department of Defense and State Department officials about the way Guantanamo detainees and others held as "unlawful enemy combatants" were being treated according to the new regulations. They noticed that despite claims the AFM adhered to Geneva Conventions protections in regards to prisoners, "unlawful enemy combatants" were held to a different standard in Appendix M's so-called "Separation" technique.

The Nation's "Gold Standard" for Interrogation

Also highlighted in my 2009 article was the role of the alternative press. I specifically singled out at the time Salon.com and its torture "beat" writer, Mark Benjamin, for failing to report the truth about the Army Field Manual. In fact, to this day, Salon.com has never carried one article on Appendix M, or even a report on the many exposés in regards to the AFM and torture released by numerous human rights and legal groups.

Well, there was one mention. Glenn Greenwald, writing a 2010 article for Salon, used an extended quote from Scott Horton at Harpers magazine that mentioned "plenty of torture-lite techniques under Appendix M of the Army Field Manual." Greenwald made no comment about Appendix M on his own, and the article itself was mainly about the otherwise important issue of indefinite detention.

But the one time Greenwald did write about the 2006 Army Field Manual, in December 2008, he got caught up in the juxtaposition of the AFM to the CIA's waterboarding and so-called enhanced interrogation program, aligning himself with "those of us who insist that Democrats fulfill their commitment to compel the CIA’s compliance in all cases with the extant Army Field Manual." Greenwald quoted favorably Democratic Senators Ron Wyden and Dianne Feinstein, and wrote that the AFM "authorizes robust and effective interrogation techniques."

While Greenwald is doing extremely important work on issues of government surveillance and civil liberties in general, and has shown bravery in doing so, he has failed for some reason to grasp the issues surrounding torture and the Army Field Manual.

It seems reasonable to assume that the liberal or progressive press failure to oppose torture -- or rather, to see torture -- in the Army Field Manual derives from reliance on or obedience to Democratic Party politicians. An example of the liberal Democrats stance on the AFM and torture was published at Salon.com in October 2007. The late Sen. Edward Kennedy wrote an op-ed, "We must ban secretive U.S. torture." In his column, Kennedy called the AFM "the 'gold standard' for responsible and effective interrogation techniques."

Salon.com was not unique in touting the supposed benefits of the Army Field Manual, or in ignoring the criticisms made of its Appendix M, or aspects of the AFM that introduced abuse even outside the Appendix M category. The number of progressive bloggers who wrote about all this could be counted on one or two hands (Marcy Wheeler and bmaz at Emptywheel, Scott Horton, Andy Worthington, Spencer Ackerman, and Daphne Eviatar -- if I left anyone out, I apologize.) Some notable anti-torture bloggers, like the Hillman Prize-winning Atlantic columnist Andrew Sullivan, simply have kept quiet and said very little or nothing about the entire issue, at least once the new AFM was put in place and sold as a big reform.

An End to Torture?

I believe many commentators, outraged by the brutal CIA program of "enhanced interrogation" torture, exemplified by the use of waterboarding, squeezing people into tiny boxes, slamming them against walls, etc., assumed that the AFM prohibition of waterboarding, hooding, nudity, etc., meant an end to torture itself. But torture is not just about brutality; it is about how to break down a human being.

Years of study about the latter by this nation's intelligence and military researchers, assisted by top figures in medicine and behavioral science academia, led the CIA to adopt a torture program sometime between the mid-1950s and early 1960s that was based on "psychological" methods: using fear, feelings of helplessness or "futility", and "touchless" techniques like solitary confinement, sleep deprivation, stress positions, and even use of drugs to break down and control prisoners. In doing this the CIA borrowed also from the military survival, resistance, evasion and escape, or SERE, programs that they were monitoring, and apparently still do monitor and do research on as late as this past decade.

Below is the updated version of the Jan. 2009 story that continued my documentation on the "selling" of the Army Field Manual. I have added notes (in brackets) where applicable to bring up to date, and more silently corrected grammar and syntax to allow for greater comprehension.

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The Foreign Press, Salon.com, and the Army Field Manual

On September 7, 2006, Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson and Army Deputy Chief of Staff for Intelligence (G-2) Lt. Gen. John Kimmons showed up at a State Department foreign press briefing on the then-new DoD Directive 2310.10E (on its detainee program) and the also then brand-new Army Field Manual on interrogations. Only the day before, Kimmons and Stimson had held a news briefing for U.S. reporters at the Department of Defense on the same subjects, which I covered in a recent article at AlterNet. (See updated version of this article here.)

While few bloggers paid attention to this September 6 DoD briefing (except one noted reporter, as I'll describe later), most likely that was because President Bush had one of his infrequent news conferences that same day, and this one was a blockbuster. Bush acknowledged the existence of a secret CIA prison network [which he also at the same time said he was closing]. He also announced he was ordering the transfer of Khalid Sheikh Mohammed and 13 other "high-value detainees" [from the CIA black sites] to Guantánamo Bay to be put on trial.

As the Guardian UK described it:

Mr Bush's disclosure was intended to put pressure on the US Congress to support draft legislation put forward by the White House yesterday for a system of military tribunals for the Guantánamo detainees.

The US supreme court struck down the military tribunals established by the administration for the 450 inmates at Guantánamo last June, ruling that they had no basis in US law and violated the Geneva Convention [Hamdan v. Rumsfeld].

The pressure of the Bush administration to get a military commissions process in place -- to replace the one thrown out as unconstitutional by the Supreme Court -- resulted later that year in Congressional passage of the Military Commissions Act [of 2006]. As described by the ACLU, this infamous legislation, passed with the support of the vast majority of the GOP and certain key Democrats, eliminated "the constitutional due process right of habeas corpus for detainees at Guantánamo Bay and elsewhere." It also:

...[gave] any president the power to declare — on his or her own — who is an enemy combatant, decide who should be held indefinitely without being charged with a crime and define what is — and what is not — torture and abuse.

With so much going on at Bush's news conference, who would notice the goings on at DoD, with the decidedly less glamorous Kimmons and Stimson? But one reporter did. In an article for Salon.com, journalist Mark Benjamin, who had been covering the torture beat for awhile, described the "mixed messages on torture" emanating from the White House and DoD.

While Bush was defending "tough interrogation tactics" and "black site" secret prisons, the DoD spokesmen were lauding the new Army Field Manual as "designed to fit squarely within the protections of the Geneva Conventions." [In his article,] Benjamin quoted Kimmons approvingly, describing the AFM as "humane" and in accord with the views of "conventional senior generals."

Yet Benjamin failed to notice, or report, that the bulk of the Q&A session with reporters at that news conference concentrated on serious questions about whether the Army Field Manual allowed abuse itself, particularly in its Appendix M, which describes an omnibus "technique" called "Separation." Appendix M allows the use of isolation, sleep deprivation, and various forms of sensory deprivation on prisoners, mostly to be used with other AFM "approaches," like "Fear Up," "Ego Down," and "Futility."

The reporters grilled Kimmons and Stimson on the AFM and its use of solitary confinement and sensory deprivation. But you wouldn't know that from Benjamin, the alternative and progressive [press] reporter, whose coverage of the event was as obtuse as that of the mainstream press. (See here or here for the full story of that news conference.)

The Foreign Press Have Their Say

The same day Salon.com was publishing Benjamin's article, and the mainstream press was assessing Bush's news conference, Stimson and Kimmons traipsed over to the State Department to give their briefing to the foreign press on 2310.10E and the Army Field Manual. Also in attendance were Brigadier General Thomas L. Hemingway, Legal Adviser to the Appointing Authority, Office of Military Commissions, and Sandra Hodgkinson, State Department Deputy Director, Office of War Crimes Issues.

[Not long after this press conference, Hodgkinson, a former JAG attorney, moved to DoD where she served from 2007-2009 as Deputy Assistant Secretary of Defense for Detainee Affairs. Today she is Vice President, Chief of Staff for U.S. defense contractor, DRS Technologies, "a leading supplier of integrated products, services and support to military forces, intelligence agencies and prime contractors worldwide."]

During the State Dept. news conference, Reymer Luever, from the German newspaper Suddeutche Zeitung, tried to nail down Lt. Gen. Kimmons on the use of the "Separation" technique and the applicability of Geneva Common Article Three. As we will see, skepticism from the press was met with double-talk, and a misrepresentation of the situation of "unlawful enemy combatants" and Geneva protections (bold emphasis added):

QUESTION: Thank you very much General Kimmons. You mentioned the 19 interrogation techniques and the 19[th] interrogation technique [S]eparation. You mentioned that this isn't covered by -- or is an exception from the Geneva Convention. Are there other exceptions from the Convention, the new manual?

LTG KIMMONS: Well, I take issue with you that it's an exception from the Convention. It's the wording in the Geneva -- the third Geneva Convention that causes us to place separation as a restricted technique and not to employ against prisoners of war or lawful combatants. It is the wording and the requirements of Geneva and the definition within Geneva of what is a lawful enemy combatant, what is a prisoner of war. And clearly al-Qaida and the Taliban and the people we are dealing with now in large portions, you know, of the battlefield do not fit the standard established in Geneva for prison of war or other types of lawful enemy combatants. And therefore, according to Geneva, those type of enemy combatants are not -- are just like spies and saboteurs in the older days. And traditionally are not entitled to the same protections under Geneva.

"Like spies and saboteurs"? Where did Kimmons come up with that? The reference is to the Fourth Geneva Convention on "Protection of Civilian Persons in Time of War," [which allows for some reduction in rights for captured suspected spies and saboteurs, which is we'll examine more below.]  Of course, no one from DoD wants to refer to the Fourth Geneva Convention, because they would have to admit that such prisoners had rights even beyond those in Common Article 3, which protect against violence, "cruel treatment and torture." For instance, there's Article 31:

No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.

Now, Common Article 3 of the Geneva conventions does not explicitly forbid coercion. Also, Kimmons is correct that the POW Geneva convention has a higher standard for POWs, forbidding all forms of coercion upon them. Unfortunately, the GCs don't define what is meant by "coercion." But the CIA's 1963 Kubark interrogation manual does.

The Purpose of Coercive Interrogations

Jennifer Elsen, in an an essay on the "Lawfulness of Interrogation Techniques Under the Geneva Conventions," in The Treatment of Prisoners (ed. R.D. McPhee, 2006, Nova Science Publishers), pointed out that the CIA distinguished between coercive and non-coercive interrogations. Coercive interrogations were those "designed to induce regression," producing a loss of general cognitive capacities, including the ability to deal with complex situations, or the ability to "cope with repeated frustrations." The tools of the coercive interrogator include the induction of fatigue, pain, sleep loss, anxiety, fear, and the "deprivation of sensory stimuli through solitary confinement or similar methods."

[As we can see, "coercive" interrogation is really torture, and the forms of that kind of torture are for the most part those which are allowed for use in the Army Field Manual. It's not an accident that Amnesty International, Physicians for Human Rights, the Constitution Project, Human Rights First, the ACLU, the Center for Constitutional Rights, Human Rights Watch, and others have called for either the withdrawal of Appendix M or a rewrite of the Army Field Manual, or both.]

According to the Civilian Geneva Convention protocols, its protections include all civilians "taking no active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause." [emphasis added] During the press conference, Kimmons noted the exception for "spies and saboteurs," equating the latter with the captured detainees. But those captured in their "war on terror" in Afghanistan and elsewhere were not spies and saboteurs. Yet, even if they were, according to the Geneva Conventions, they have only "forfeited rights of communication." One cannot lock them up and throw away the key.

The Civilian Geneva Convention protocol continues, discussing the plight of "spies and saboteurs":

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

"Full rights and privileges of a protected person"... that doesn't sound like one could be subject to coercive interrogation or torture, or spurious military commissions, does it?

Kimmons Down the Rabbit Hole on Geneva

Let's go back to the briefing, and pick up just where we left off. Kimmons, asked if there exceptions to Geneva in the AFM, said that unlawful enemy combatants were "not entitled to the same protections under Geneva" as prisoners of war. But in his very next sentence, he continued, in an entirely different, and confusing vein:

As a matter of law here in the United States, we are going to provide the same single standard for humane treatment to all categories of detainees, both lawful and unlawful combatants.

That same legal requirement does not require us to afford additional privileges above and beyond that standard to unlawful combatants. And that's why separation is placed -- separated to it.

I'm sorry, could you repeat the second part of your question.

QUESTION: My question was are there other -- what I have called exceptions from the Convention in the field manual?

LTG KIMMONS: No. In accordance, as a matter of law, only those interrogation approach techniques that are listed in -- authorized by the Army Field Manual, this field manual, can be employed on any class of category of detainee across the Department of Defense.

The last statement makes no sense when compared with Kimmons remarks during his opening statement, remarks to which Mr. Luever alluded in his question above. [They don't even make sense grammatically!] For in his earlier statement, Lt. Gen. Kimmons stated (bold emphasis added):

Separation meets the standard for humane treatment, but the Geneva Conventions, specifically the third Geneva Convention, affords prisoners of war, lawful enemy combatants, additional protections above and beyond the single humane standard to which they're entitled. It entitles them to pay, entitles them to send and receive mail and packages, and it also protects them from separation from other prisoners of war with whom they were captured without their expressed consent.

Unlawful combatants are not entitled to those additional protections and privileges above the humane standard. So Geneva -- the common third -- Common Article 3 of the Geneva Conventions applies to all categories of detainees' [there may be missing text in the transcript here] [S]eparation, however, is only authorized for use on a by-exception basis with unlawful enemy combatants.

Threading the eye of the needle, DoD means to say one thing one moment and another thing the next. What's clear is that they believe Separation is not a group of techniques that can be used on regular POWs, only "unlawful enemy combatants." But the privileges enumerated by the third Geneva Convention -- Kimmons lists pay, getting mail and packages -- does not include in its text, as Kimmons maintains, the right not to experience "separation," i.e., solitary confinement, sleep and perceptual deprivation, etc.

This can all get quite confusing, but seems to boil down to this. The Pentagon, and perhaps their CIA mentors, want to slice and dice the Geneva Conventions at their will, in order to manifest the core program of coercive interrogation, as laid down by the CIA's KUBARK manual. DoD has done this by slyly implementing that core program into the Army Field Manual and Appendix M. Because of the Abu Ghraib scandal, they want to hide or forbid all types of treatment that became notorious due to press exposure, and that includes the revelations around waterboarding. But the induction of regression, using a paradigm the CIA referred to as DDD (Dependency, Debility, Dread), is still at the core of the coercive techniques they intend to rescue for their use.

And because of the ignorance or indifference, or in some cases, collusion, of the press and politicians, it appears that they will get their way.

Postscript, January 2014

George Hunsinger, who is the founder of the National Religious Campaign Against Torture, wrote about the misrepresentation of the Army Field Manual and its Appendix M in the popular press. "It is sad to see the mainstream media display so much confusion about a heinous crime like torture," Hunsinger wrote.

"Torture is immoral under all circumstances.  It represents an extreme and shocking form of violating the human person.  Like slavery, genocide and rape, it is never justified."

Crossposted at The Dissenter/FDL

Obama & Holder Trash Nuremberg Principles (updated)

A dark, dark day for America.

"They were only following orders." This is the opinion of Eric Holder, as offered in his statement today, describing the decision to release four Bush-era Office of Legal Counsel memos. (The memos have just been posted, and link is here.)

And so the United States government, 64 years after the end of World War II, adopts the infamous slogan of "Befehl ist Befehl" (literally "orders are orders"), otherwise known as the Nuremberg Defense.

Furthermore, Holder pledges the U.S. government will defend any CIA torturers before any tribunal, domestic or international, pay any fines, and make every effort to assert "any available immunities and other defenses".

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Holder said.

No matter how you try to spin it. No matter how enraged you are at my making a comparison to of U.S. governmental leaders to Nazi war criminals, there is no getting around it. Torturers are absolved by this administration. And the way they did was by using the defense made popular by the Nazis at their war crimes trials, and thoroughly rejected by the United States at that time.

In taking this position formally, the Obama administration has discarded the principles enumerated in the London Charter of the International Military Tribunal at Nuremberg, where Articles 7 and 8 state (emphasis added):

Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

"Mitigation of punishment" sounds a hell of a lot different than what Holder is proposing, which is an all-out defense of those who claim who were "only following orders" (quotes for irony, not Holder's). Perhaps Holder should consider this statement, from the Nuremberg IMT's Trial of the Major War Criminals:

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

Or both Holder and Obama can consider what the U.S., as a High Contracting Party, or signatory, to the Geneva Conventions says about the duty to prosecute war crimes, such as torture (emphasis added):

“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).

Evidence of the crimes committed by CIA officers, agents and/or contractors in perpetuating torture are documented in a number of sources, but none as authoritative as the recent report by the International Committee of the Red Cross on CIA abuse and torture of "high-value detainees" in its custody. The failure to seek prosecutions of war criminals, and now by formal pronouncement, puts high officials of the U.S. government in violation of the Geneva Conventions.

Additionally, and no less outrageously, when Eric Holder or Barack Obama tell you the U.S. government does not condone torture, they do not tell you the truth. The government maintains a classic form of torture within the current Army Field Manual, combining partial sensory deprivation, isolation, sleep deprivation, harsh use of fear and dread, all while instilling a sense of hopelessness in prisoners, which is the same sort of psychological torture perfected by the Stalinists of various countries, and advocated in the CIA's own counter-intelligence interrogation manual from the early 1960s, known as the KUBARK Manual.

Those who are so inclined may wish to watch this concluding section of the famous film, "Judgement at Nuremberg." The quote that follows is from Spencer Tracy's speech. As you watch, consider how far subservience to the military and intelligence agencies has acted as an acid to undermine all that this nation once believed and fought for.

The principle of criminal law in every civilized society as this in common: any person who sways another to commit murder, any person who furnishes the lethal weapon for the purpose of the crime, any person who is an accessory to the crime, is guilty....

Before the people of the world let it now be noted in our decision that this is what we stand for: justice, truth, and the value of a single human being.

UPDATE

The release of the memos by OLC justifying torture are up for anyone to view. The link is at the top of the diary. I've looked at the Aug. 1, 2002 memo from Jay Bybee (and any helpers) to John Rizzo at CIA. It's an extraordinary document, and everyone should take a look.

It authorizes the use of ten abusive interrogation techniques: attention grasp, walling, facial hold, facial slap (insult slap), cramped confinement, wall standing (should be called slamming), stress positions, sleep deprivation, insects placed in a confinement box (!), and the waterboard.

The connections between SERE techniques and use CIA operational use of same is made clear throughout, as is the collaboration with medical professionals and SERE military psychologists. Notably, Bybee claims the OLC decision was vetted with interrogation experts, SERE experts, and "outside psychologists". One wonders who the latter were, and I would like to see the American Psychological Association ask for an immediate investigation of who these "outside psychologists" were.

Throughout the document there are blacked-out sections, mostly those that obviously relate to names and identities. But not entirely, as there are whole paragraphs blocked out in sections that evidently go into more details than DoJ wished to release.

As you read these documents and their bogus claims of authority to torture, imagine you are one of the interrogators getting these orders (place insects in a confinement box! waterboard!). And remember, finally, that the CIA and/or military used torture prior to the authoring of these memos (also see this link), so Holder's "they were only following orders" defense is pure BS from top to bottom.

Also posted at Daily Kos

Glenn and Jane on Democracy Now! -- Has Torture Been "Wiped Out"?`

Glenn Greenwald and Jane Mayer appeared on Amy Goodman's Democracy Now! the other day. There was a lot to be grateful for in letting these two important voices get further exposure. Both Mayer and Greenwald agreed there were things to be concerned about regarding the Obama administration's positions re suppression of state secrets privilege in cases such as that of Binyam Mohammed. Both agreed that the Bush Administration's organization of state torture deserved investigations and prosecutions. Both warned that dangers remain for those who would see the reestablishment of basic civil liberties.

While there is much to praise in the work of these intrepid journalists (see Glenn Greenwald's column at Salon.com on any given day, or read Jane Mayer's book, The Dark Side), a few of their comments at Democracy Now! bear further scrutiny.

Mayer, at one point, took umbrage at what she felt was Greenwald's overly negative representation of the Obama administration's actions thus far concerning torture, interrogations, rendition, and secrecy:

And they —- you know, I’m giving them maybe a little bit more credit than Glenn is, because I think what they did in their first week in office was stupendous. They put out executive orders that said, from here on out, everybody’s got rights, everybody’s covered by the Geneva Conventions, the ICRC gets to see every detainee, we’re closing the black site prisons, we’re going to shut down Guantanamo. They are moving on —- these things are not nothing; these things are really seriously great reforms.

Greenwald replied, in part (emphasis added):

Well, I mean, I actually agree with Jane that it’s a mixed picture, more than perhaps my answer might have suggested, because I was addressing two specific areas where I think the Obama administration has done the wrong thing. But she’s right that the executive orders issued in the first week were promising and encouraging, and there are complexities and conflicting pressures. They need to make sure the CIA doesn’t revolt over the idea that, you know, they’re going to be dragged into court for what they did. They’re figuring out ways to try and keep some of these secrets without becoming complicit in them....

As far as looking forward, you know, those executive orders were good, and they were encouraging, but they leave some of the trickiest questions open. You know, are we going to close Guantanamo but then move those due process-abridging military commissions inside the United States and call them national security courts, where they might be even worse? Are we going to, as you just asked and as Leon Panetta suggested, preserve some of the rendition policies that have led to such severe abuse and some of the most grotesque acts of the last eight years? I mean, these are all good questions that are very much unresolved.

There are two pertinent points I'd like to make here. One, Mayer's accolades regarding the Obama executive orders on torture and interrogation appear overly optimistic. While Obama and his team deserve credit for removing (for now) the CIA's approval for "enhanced interrogation techniques", such as waterboarding, and a closing down of CIA prisons, it left the door open for changes in the near future, and allowed the CIA to still operate prisons for unspecified short-term prisoners. Would that mean, say, the three or six month imprisonment and torture of a suspect by means of sensory deprivation, isolation, sleep deprivation and manipulation of fears, or administration of short-acting psychotropic medications?

The latter is not an inapposite question, as all of these techniques are allowed by the current Army Field Manual, which by executive order of Barack Obama is now the standard operating procedure for interrogations by governmental and military agencies. And furthermore, I know that Jane Mayer knows this, because I emailed her to inform her of my articles on the subject, and she emailed back that it was something she would look into.

Besides the information I provided, Ms. Mayer could have perused some of the statements of Center for Constitutional Rights or Physicians for Human Rights, who have indicated their opposition to these aspects of the Army Field Manual and its Appendix M, and asked the current administration to rescind these techniques.

Greenwald's reply to Mayer shows that understands the ongoing problems with the Obama administration's actions thus far. While he has yet to mention the problems with the Army Field Manual, he doesn't pretend that Obama's reforms have totally ended any danger of torture by the current administration, which is how Mayer described the current situation in her interview with Terri Gross of NPR's Fresh Air program on 2/18/2009. She told Gross that when Obama's administration put all detainees held by the U.S. under the Geneva Conventions, they "wiped out the whole issue of torture" (quote can be heard 24 minutes into the interview).

Now, maybe Jane Mayer knows more that I do. Literally. The new executive order, "Ensuring Lawful Interrogations" has the following subsection:

[3](c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.

The provision by which the Army Field Manual claims that its techniques are legal pertains to legal reviews done by "senior DOD figures at the secretarial level, by the Joint Staff, by each of the combatant commanders and their legal advisers, by each of the service secretaries and service chiefs and their legal advisers, in addition to the director of the Defense Intelligence Agency and the director of National Intelligence, who coordinated laterally with the CIA." It was also "favorably reviewed" by Attorney General Alberto Gonzales' Justice Department.

If all those legal opinions regarding Army Field Manual 2-22.3 are now rescinded, where does that leave the techniques enumerated within its Appendix M and elsewhere, including the use of partial sensory deprivation, sleep deprivation, the use of fear and humiliation, isolation, and other objectionable techniques that many legal observers have termed as cruel, inhumane, and degrading, if not torture? I don't know. But leaving these techniques still in the document is like leaving a landmine intact with its fuse and only placing red flags around it. The document is still highly dangerous and violates Geneva and the Convention Against Torture. I would note that with or without legal opinions, the drafters of the AFM took care to make Common Article 3 the minimal criteria. Common Article 3 does not ban use of "coercion" on detainees, something that is specifically spelled out in the full conventions governing both POWs and Civilians.

Maybe Jane Mayer knows what the Obama administration plans to do in regards to new legal opinions on the AFM. She certainly may have the sources. But I don't put a lot of stock on intimations of insider knowledge, and besides, Mayer has suggested no such special knowledge on this point. Hence, her assertion that the issue of torture is now "wiped out" appears precipitous at best.

As for Glenn Greenwald's comments, I have no such bone to pick with its content. But I did think he revealed a certain aspect of the current situation politically that isn't emphasized enough. In commenting on the Obama administration's approach to these problems he indicated that wants to "make sure the CIA doesn’t revolt over the idea that... they’re going to be dragged into court for what they did."

What sort of a revolt does Greenwald have in mind? And why should we be so worried about it? Will the CIA go on strike? Or will they do something worse than that, i.e., strike out somehow at those they perceive as their enemies?

It's not the "revolt" aspect that is most telling. It's that a primary player in this scandal, the CIA, has so much power of intimidation, backed up by very little actual accountability to anyone. Senator Levin and the Senate Armed Services Committee did an incredible job investigating detainee abuse by the Department of Defense, but they had almost no cooperation from the CIA. The CIA's Inspector General John Helgerson reportedly wrote a stinging report in 2004 on CIA torture abuse, including the deaths of prisoners in custody, but the report has been classified. Some enterprising reporter may want to ask Obama about that at his next press conference. (Helen Thomas, are you listening?)

Over thirty years since the worst scandals related to CIA power and abuse were reported, the agency still retains its incredible power and secrecy. Its tentacles reach into the military in ways that we have yet to fully understand. (See the participation of the CIA's General Council as represented in the minutes from a meeting about interrogations and torture at Guantanamo in October 2002.) Without understanding the full consequences of how the power of the CIA is wielded in Washington, we cannot make a certain assessment of the issues at stake nor where they stand.

One could also, by the way, add in any problematic response by the military-surveillance complex to the fight against limitless wiretapping by the U.S. government. The extent of the surveillance is wonderfully, if scarily, presented in James Bamford's excellent new book, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America. Bamford documents the size of this empire, which includes many tens of thousands of employees and gigantic corporations -- not even counting the ongoing collaboration of the telecommunications industry in the huge surveillance scheme collecting all our telephone calls, e-mails, and Internet browsing. Along with Mayer's Dark Side, The Shadow Factory provides a two-volume introduction into the secret life of American intelligence.

On the U.S. Duty to Prosecute War Crimes (Part I)

Oh, beat the drum slowly and play the fife lowly...

In the United States, questions around prosecution of war crimes revolve around the use of torture by Bush Administration officials, as well as the illegality of the U.S. attack on Iraq, which resulted in over a million deaths.

As regards torture, the Bush administration's head judge at Guantanamo has already admitted that torture was used at that facility, and dropped the charges against one high-profile detainee, Mohammad al-Qatani, as a result.

When it comes to the attack on Iraq, there was this report in the Guardian late last year:

Addressing the British Institute of International and Comparative Law last night, [former British senior judge, retired, Lord] Bingham said: "If I am right that the invasion of Iraq by the US, the UK, and some other states was unauthorised by the security council there was, of course, a serious violation of international law and the rule of law. "For the effect of acting unilaterally was to undermine the foundation on which the post-1945 consensus had been constructed: the prohibition of force (save in self-defence, or perhaps, to avert an impending humanitarian catastrophe) unless formally authorised by the nations of the world empowered to make collective decisions in the security council ..."

If you read for awhile the various blog and mainstream press opinion pieces on the issue of prosecuting American officials, you will come across a good deal of pessimism and ignorance. Some of the critics of prosecuting are well-informed, but present one-sided views of the difficulties involved in making such a prosecution. But UN officials seem to find the issue quite straightforward.

From The Jurist:

[A]ccording to a statement made by UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Manfred Nowak in an interview Tuesday with German television program ZDF Frontal 21. Nowak said that such actions constituted a violation of the UN Convention Against Torture, to which the US is a party. Nowak noted that although evidence is available to press charges, he does not know whether US law would recognize the interrogation techniques used as forms of torture.

There are a number of instruments whereby U.S. officials are vulnerable to war crimes charges. The UN Convention Against Torture required implementing laws to be established in signatory states. Consequently, the U.S. "enacted 18 U.S.C. §§ 2340 and 2340A, which prohibit torture occurring outside the United States (torture occurring inside the United States was already generally prohibited under several federal and state statutes criminalizing acts such as assault, battery, and murder)" (see CRS report).

Besides CAT, the U.S. has a duty to prosecute Bush administration officials, both civilian and military (and intelligence), for torture and cruel, inhuman and degrading treatment of prisoners. H/T to Charles Gittings (emphasis added):

“The High Contracting Parties [signatories to the Geneva conventions, which includes the U.S.] undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

“Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

“In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.”

Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).

The issue seems clear. But opponents of prosecution, or sometimes just political pessimists who deem themselves "realists," cite the issue of prosecutorial discretion, believing there is no provision within, for instance, the CAT treaty, that requires prosecution. U.S. prosecutors are free to use their discretion in selecting whom they investigate and charge. This is not entirely wrong, although this passage from Chris Ingelse’s book The UN Committee Against Torture: An Assessment, puts the issue of prosecutorial discretion into greater legal context (H/T Kevin Jon Heller -- emphases added):

Article 7, par. 2 grants the authorities a discretionary power in terms of whether or not they prosecuted a suspect of torture. The Committee confirmed — in abstract terms — that the discretionary power was not unlimited and could not be determined on the grounds of national law only. In any event, the discretionary power could not extend as far as to allow those responsible for torture to escape punishment. The Committee found that there had to be opportunities for an individual to submit a complaint against prosecutors who fail to prosecute suspects of torture. If necessary, there had to be an opportunity for the victim himself to initiate criminal proceedings against the person suspected of torture.

As a matter of principle, the duty to prosecute is well established in international law. Ironically, it was the United States, along with its World War II allies, that pushed to establish this principle.

From University of Queensland Law Journal re "The United Nations and International Criminal Law" (emphases added):

In the NurembergTrial of the Major War Criminals, the International Military Tribunal held that ‘international law imposes duties and liabilities upon individuals as well as states’ and that ‘individuals can be punished for violations of international law.’[33] The Tribunal went on to proclaim:

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

The Nuremberg Tribunal even went so far as to hold that the doctrine of nullim crimen sine iure must not be allowed to stand in the way of bringing persons to justice for acts which they must have known amounted to criminal conduct under international law:

To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished.

The next period will determine whether the U.S. will continue to alibi U.S. war criminals. The calls for some kind of investigatory commission should not be definitively ruled out, but any decision on such must follow a determination of whether to prosecute Bush, Cheney, Rumsfeld, Addington, Yoo, Rice, Haynes, and all the gang for crimes against humanity. To fail to do so, especially for lame excuses such as prosecutorial discretion, is in itself a crime and a violation of treaty obligations. Any use of "Truth" or "Truth and Reconciliation" commissions as a way to bypass the necessary prosecutions, as some fear is the plan of establishment Democratic Party liberals, should be opposed.

As Glenn Greenwald put it so well in an article last month:

The principal purpose of the Convention is to remove the discretion involved in prosecuting acts of torture and to bar the very excuses which every torturing society proffers and which our own torturing society is now attempting to invoke ("we were dealing with real threats; there were 'exceptional circumstances' that justified it; we enacted laws legalizing the torture; our leaders meant well; we need to move on").

International treaties which the U.S. signs and ratifies aren't cute little left-wing platitudes for tying the hands of America. They're binding law according to the explicit mandates of Article VI of our Constitution. Thus, there simply is no way to (a) argue against investigations and prosecutions for Bush officials and simultaneously (b) claim with a straight face to believe in the rule of law, that no one is above the law, and that the U.S. should adhere to the same rules and values it attempts to impose on the rest of the world.

For more on this issue, please click here to read Part II, which looks at relevant Supreme Court decisions, and the intervention of the notorious John Yoo into the treaty issue.

The Foreign Press, Salon.com, & the Army Field Manual

On September 7, 2006, Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson and Army Deputy Chief of Staff for Intelligence (G-2) Lt. Gen. John Kimmons showed up at a State Department foreign press briefing on the then-new DoD Directive 2310.10E (on its detainee program) and the also then brand-new Army Field Manual on interrogations. Only the day before, Kimmons and Stimson had held a news briefing for U.S. reporters at the Department of Defense on the same subjects, which I covered in a recent article at AlterNet.

While few bloggers paid attention to the September 6 DoD briefing (except one noted reporter, as I'll note later), most likely that was because President Bush had one of his infrequent news conferences the same day, and this one was a blockbuster. Bush acknowledged the existence of a secret CIA prison network. He also announced he was ordering the transfer of Khalid Sheikh Mohammed and 13 other "high-value detainees" to Guantánamo Bay to be put on trial.

As the Guardian UK described it:

Mr Bush's disclosure was intended to put pressure on the US Congress to support draft legislation put forward by the White House yesterday for a system of military tribunals for the Guantánamo detainees.

The US supreme court struck down the military tribunals established by the administration for the 450 inmates at Guantánamo last June, ruling that they had no basis in US law and violated the Geneva Convention [Hamdan v. Rumsfeld].

The pressure of the Bush administration to get a military commissions process in place, to replace the one thrown out as unconstitutional by the Supreme Court, resulted later that year in Congressional passage of the Military Commissions Act. As described by the ACLU, this infamous legislation, passed with the support of the vast majority of the GOP and certain key Democrats, eliminated "the constitutional due process right of habeas corpus for detainees at Guantánamo Bay and elsewhere." It also:

...[gave] any president the power to declare — on his or her own — who is an enemy combatant, decide who should be held indefinitely without being charged with a crime and define what is — and what is not — torture and abuse.

With so much going on at Bush's news conference, who would notice the goings on at DoD, with the decidedly less glamorous Kimmons and Stimson? But one reporter did notice the confluence of events that day. In an article for Salon.com, journalist Mark Benjamin, who had been covering the torture beat for awhile, noted the "mixed messages on torture" emanating from the White House and DoD. While Bush was defending "tough interrogation tactics" and "black site" secret prisons, the DoD spokesmen were lauding the new Army Field Manual as "designed to fit squarely within the protections of the Geneva Conventions." Benjamin quoted Kimmons approvingly, describing the AFM as "humane" and in accord with the views of "conventional senior generals."

Benjamin failed to notice, or report, that the bulk of the Q&A session with reporters at that news conference concentrated on serious questions about whether the Army Field Manual allowed abuse itself, particularly in its Appendix M, which describes an omnibus "technique" called "Separation." Appendix M allows the use of isolation, sleep deprivation, and various forms of sensory deprivation on prisoners, mostly to be used with other AFM "approaches," like "Fear Up," "Ego Down," and "Futility."


The reporters grilled Kimmons and Stimson on the AFM and its use of solitary confinement and sensory deprivation. But you wouldn't know that from Benjamin, the alternative and progressive reporter, whose coverage of the event was as obtuse as that of the mainstream press. (See here or here for the full story of that news conference.)

The Foreign Press Have Their Say

The same day Salon.com was publishing Benjamin's article, and the mainstream press was assessing Bush's news conference, Stimson and Kimmons traipsed over to the State Department to give their briefing to the foreign press on 2310.10E and the Army Field Manual. Also in attendance were Brigadier General Thomas L. Hemingway, Legal Adviser to the Appointing Authority, Office of Military Commissions, and Sandra Hodgkinson, State Department Deputy Director, Office of War Crimes Issues.

During the State Dept. news conference, Reymer Luever, from the German newspaper Suddeutche Zeitung, tried to nail down Lt. Gen. Kimmons on the use of the "Separation" technique and the applicability of Geneva Common Article Three. As we will see, skepticism from the press was met with double-talk, and a misrepresentation of the situation of "unlawful enemy combatants" and Geneva protections (bold emphasis added):

QUESTION: Thank you very much General Kimmons. You mentioned the 19 interrogation techniques and the 19 interrogation technique [S]eparation. You mentioned that this isn't covered by -- or is an exception from the Geneva Convention. Are there other exceptions from the Convention, the new manual?

LTG KIMMONS: Well, I take issue with you that it's an exception from the Convention. It's the wording in the Geneva -- the third Geneva Convention that causes us to place separation as a restricted technique and not to employ against prisoners of war or lawful combatants. It is the wording and the requirements of Geneva and the definition within Geneva of what is a lawful enemy combatant, what is a prisoner of war. And clearly al-Qaida and the Taliban and the people we are dealing with now in large portions, you know, of the battlefield do not fit the standard established in Geneva for prison of war or other types of lawful enemy combatants. And therefore, according to Geneva, those type of enemy combatants are not -- are just like spies and saboteurs in the older days. And traditionally are not entitled to the same protections under Geneva.

"Like spies and saboteurs"? Where did Kimmons come up with that? The reference is to the Fourth Geneva Convention on "Protection of Civilian Persons in Time of War." Of course, no one from DoD wants to refer to this GC, because they would have to admit that such prisoners had rights even beyond those in Common Article 3, which protect against violence, "cruel treatment and torture." For instance, there's Article 31:

No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.

Common Article 3 of the Geneva conventions does not explicitly forbid coercion. Kimmons is correct that the POW Geneva convention has a higher standard, forbidding all forms of coercion upon a POW. Unfortunately, the GCs don't define what they mean by "coercion." But the CIA's 1963 Kubark interrogation manual does.

Jennifer Elsen, in an an essay on the "Lawfulness of Interrogation Techniques Under the Geneva Conventions," in The Treatment of Prisoners (ed. R.D. McPhee, 2006, Nova Science Publishers), pointed out that the CIA distinguished between coercive and non-coercive interrogations. Coercive interrogations were those "designed to induce regression," producing a loss of general cognitive capacities, including the ability to deal with complex situations, or the ability to "cope with repeated frustrations." The tools of the coercive interrogator include the induction of fatigue, pain, sleep loss, anxiety, fear, and the "deprivation of sensory stimuli through solitary confinement or similar methods."

According to the Civilian convention, for which any prisoner, "including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause," which definition being part of Common Article 3 the U.S. government accepts for those captured in their "war on terror," spies and saboteurs have "forfeited rights of communication." Does this mean one can lock them up and throw away the key? The Civilian convention goes on:

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

"Full rights and privileges of a protected person"... that doesn't sound like one could be subject to coercive interrogation, does it?

Let's go back to the briefing, and pick up just where we left off. Kimmons, asked if there exceptions to Geneva in the AFM, had noted that unlawful enemy combatants were "not entitled to the same protections under Geneva" as prisoners of war. But in his very next sentence, Kimmons continued, in an entirely different, and confusing vein:

As a matter of law here in the United States, we are going to provide the same single standard for humane treatment to all categories of detainees, both lawful and unlawful combatants.

That same legal requirement does not require us to afford additional privileges above and beyond that standard to unlawful combatants. And that's why separation is placed -- separated to it.

I'm sorry, could you repeat the second part of your question.

QUESTION: My question was are there other -- what I have called exceptions from the Convention in the field manual?

LTG KIMMONS: No. In accordance, as a matter of law, only those interrogation approach techniques that are listed in -- authorized by the Army Field Manual, this field manual, can be employed on any class of category of detainee across the Department of Defense.

The last statement makes no sense when compared with Kimmons remarks during his opening statement, remarks to which Mr. Luever alluded in his question above. For in that statement, Lt. Gen. Kimmons stated (bold emphasis added):

Separation meets the standard for humane treatment, but the Geneva Conventions, specifically the third Geneva Convention, affords prisoners of war, lawful enemy combatants, additional protections above and beyond the single humane standard to which they're entitled. It entitles them to pay, entitles them to send and receive mail and packages, and it also protects them from separation from other prisoners of war with whom they were captured without their expressed consent.

Unlawful combatants are not entitled to those additional protections and privileges above the humane standard. So Geneva -- the common third -- Common Article 3 of the Geneva Conventions applies to all categories of detainees' [there may be missing text in the transcript here] [S]eparation, however, is only authorized for use on a by-exception basis with unlawful enemy combatants.

Threading the eye of the needle, DoD means to say one thing one moment and another thing the next. What's clear is that they believe Separation is not a group of techniques that can be used on regular POWs, only "unlawful enemy combatants." But the privileges enumerated by the third Geneva Convention -- Kimmons lists pay, getting mail and packages -- does not include in its text, as Kimmons maintains, the right not to experience "separation," i.e., solitary confinement, sleep and perceptual deprivation, etc.

This can all get quite confusing, but seems to boil down to this. The Pentagon, and perhaps their CIA mentors, want to slice and dice the Geneva Conventions at their will, in order to allow the core program of coercive interrogation as laid down by the CIA's Kubark manual, using the Army Field Manual and Appendix M as their primary device. Because of the Abu Ghraib scandal, they want to hide or forbid all types of treatment that became notorious due to press exposure, and that includes the revelations around waterboarding. But the induction of regression, of a paradigm the CIA referred to as DDD (Dependency, Debility, Dread), is still at the core of the coercive techniques they intend to rescue for their use.

And because of the ignorance or indifference, or in some cases, collusion, of the press and politicians, it appears that they will get their way.

Tale of a Broken Link

I had wanted to go back and review the entire foreign press briefing again, but, as described below, the webpages for it were gone. I tried to use the handy Wayback Machine, but it apparently was never logged or entered there. [UPDATE: Edger at Docudharma has successfully negotiated the Wayback Machine when I apparently couldn't. The URL for the State Department briefing is here, via a cache of the page. The State Department webpages themselves are still gone, and I've left the old links in for documentary purposes. So please read the following keeping that in mind. Big H/T to Edger!]

[Update, 1/13/2014: The following paragraphs were written to describe my difficulties finding the press conference transcript. However, I have since found a copy of that in archives section of the State Department's website. I am leaving the following paragraphs as written because historically it is what was written, but the link to the transcript has been fixed in the story above. For reference, again, here is the link.]

As this story "goes to press," I discovered that the link to the transcript of the State Department/Kimmons/Stimson briefing for the foreign press, hosted at State Department servers, is now defunct. A search of the site brings up old links to the appropriate html file, but the file itself is gone. The file I used was titled thus (found only now through a Google cache, where it was listed along with other foreign press briefings):

--09/07/06 Department of Defense Directive on Detainee Operations, the Release of the Army Field Manual for Human Intelligence Collection and an Update on Military Commissions; Cully Stimson, Deputy Assistant Secretary of Defense for Detainee Affairs; Foreign Press Center Briefing; Washington, DC -- Official Transcript

I should note this does not appear to be a global deletion of State Department files by date, as a different State Department document, that is, yet another briefing to the foreign press earlier on the same date (9/7/06) as the Kimmons/Stimson briefing, this time with State Department Legal Advisor John Bellinger, is available on State Department servers under the title "Press briefing on detainee issues and military commission legislation."

The difference between these two briefings? While the foreign press asked good hard questions during the Bellinger briefing, none concerned specifics about the Army Field Manual -- no embarrassing questions about "separation" or sensory deprivation.

Yet, I cannot conclude there is any grand conspiracy regarding any missing webpages, since, upon looking, there appear to be plenty of other missing or scrubbed files from the Bush years, through 2008. Is this routine house-cleaning, or something else? I honestly don't know. I only know that the transcript to the briefing was there a few months back, and I apologize to readers for quoting and reporting upon an event that one cannot now fact-check for accuracy.

Obscurity Blankets Certain Anti-Torture Moves

Josh Gerstein at Politico has ably described the important shortcomings one finds in President Obama's Executive Orders issued yesterday to close Guantanamo and end torture. While the CIA is disallowed from using waterboarding and other "enhanced" torture techniques, and forced to adhere to the standards (flawed as they are) of the Army Field Manual; and while the CIA is forced now to close their secret black site prisons; and while Guantanamo itself is to be close "promptly... within a year", there are some troublesome problems remaining.

Not least is the problem with the Army Field Manual itself. Some former Bush administration figures and CIA types see the AFM as insufficient to guide their interrogation actions in the field. They want the ability to improvise their techniques to the given interrogation or situation. Many of these same people are implying that Obama's moves to close Guantanamo raises the spectre of the release of horrible terrorists in the homeland itself, who will attack American communities. In a column today, Glenn Greenwald dissects this fear-mongering campaign by the right.


Others, like myself, see the AFM as abusive in and of itself. The inclusion of Appendix M, and other procedures allowed by that document, means that use of techniques such as isolation, sleep deprivation, sensory deprivation, inducing fear and humiliation of prisoners is still allowed. These techniques, especially when used in combination, which is what the AFM suggests, certainly amount to cruel, inhumane and degrading behavior (in contradistinction to Geneva rules), if not torture itself.

Josh Gerstein emphasizes a now much-examined aspect of the language of the executive order on interrogations:

[The] order also created an interagency commission which will have six months to examine whether to create “additional or different guidance” for non-military agencies such as the CIA. One group that represents detainees, the Center for Constitutional Rights, deemed that an “escape hatch” to potentially allow enhanced interrogations in the future.

White House counsel Greg Craig told reporters such fears are misplaced. “This is not an invitation to bring back different techniques than those that are approved inside the Army Field Manual, but an invitation to this task force to make recommendations as to whether or not there should be a separate protocol that's more appropriate to the intelligence community,” he said....

“For now, they’re punting, saying they’ll comply with what’s in the Army manual…but at some point in the future this commission may revert to the executive” to recommend harsher techniques, said [Yale law school lecturer, and attorney for Guantanamo prisoner Ahmed Zuhair, Ramzi] Kassem, adding that he was concerned about how transparent the commission’s recommendations would be.

Gerstein has other caveats, as well. For one thing, the man ultimately in charge of Guantanamo in the last few years for Bush, Secretary of State Robert Gates, is also the man now in charge of re-examining whether conditions there meet "humane standards of confinement." His findings will be interesting for yet another reason. As Gerstein points out, Guantanamo prisoners still suffer from isolation and force feeding.

According to detainee lawyers, about two dozen inmates who refuse to eat as a form of protest are currently being force fed, and about 140 are in some form of solitary confinement....

As far as we know, the force feeding and solitary practices continued onto Obama’s watch. Craig dodged a question about the new president’s views on those issues. “I'm not going to get into the details,” Craig said.

As I and others have noted, Obama's executive orders say nothing about other U.S. prisoners held in Baghram (about 600), and the tens of thousands held in Iraq. Nor does the halt in the military commissions mean there won't be a return to some form of ersatz trial body in the near future.

That suggestion exasperates detainee lawyers like Kassem. “That would be a huge mistake, “ he said. “That system [is] set up to launder statements obtained through torture… What’s the point of getting rid of our offshore, improvised, sham, military tribunals in Cuba, only to recreate it here in the United States?”

The Center for Constitutional Rights has called for trying prisoners (who can be charged) in ordinary criminal courts.

The new administration must repatriate those who can be released safely, secure safe haven in the United States and other countries for those who cannot be repatriated safely, and prosecute in federal criminal courts those who should be prosecuted. Only 250 of 779 men remain in the prison camp. Most can be returned to their home countries through vigorous diplomacy. A smaller number need to be offered protection in the United States or third countries, many of whom have already begun to come forward to offer help to the new administration. There is no justification for continued detention without trial or the creation of special courts; such proposals would continue the human rights disaster rather than end it.

A number of political forces are circling around the torture interrogations issue. Senator Dianne Feinstein has apparently decided that Obama's executive order is not secure as policy, and declared she will go forward with legislation to "codify" the change to the Army Field Manual, making it less likely it can be overturned by further executive actions.

While Feinstein may see this as a progressive step, I see it as a danger, in that the abusive techniques left in the Army Field Manual will be perpetuated.

Much struggle still remains in the fight against torture. This next period will see a heightening of that struggle. One thing remains clear: we must not let the discussions and battles over it creep back into backroom corridors and out of public awareness. Hopefully, Obama's wish for greater openness, and his recent efforts to strengthen access to presidential records and government documents in general, through the Freedom of Information Act, will assist us in this effort. But the main tool of change will remain public awareness and public vigilance.

How the U.S. Army's Field Manual Codified Torture -- and Still Does

Originally posted at AlterNet, and reposted here with additional links and some minor format changes

In early September 2006, the U.S. Department of Defense, reeling from at least a dozen investigations into detainee abuse by interrogators, released Directive 2310.01E. This directive was advertised as an overhaul and improvement on earlier detainee operations and included a newly rewritten Army Field Manual for Human Intelligence Collector Operations (FM-2-22-3). This guidebook for interrogators was meant to set a humane standard for U.S. interrogators worldwide, a standard that was respectful of the Geneva Conventions and other U.S. and international laws concerning treatment of prisoners.

While George W. Bush was signing a presidential directive allowing the CIA to conduct other, secret "enhanced interrogation techniques," which may or may not have included waterboarding, the new AFM was sold to the public as a return to civilized norms, in regards to interrogation.

Before long, opponents of U.S. torture policy were championing the new AFM as an appropriate "single-standard" model of detainee treatment. Support for implementing the revised AFM, as a replacement for the hated "enhanced" techniques earlier championed by Defense Secretary Donald Rumsfeld and the CIA, began to appear in legislation out of Congress, in the literature of human-rights organizations and in newspaper editorials. Some rights groups have felt the new AFM offered some improvements by banning repellent interrogation tactics, such as waterboarding, use of nudity, military dogs and stress positions. It was believed the AFM cemented the concept of command responsibility for infractions of the law.

There was only one problem: the AFM did not eliminate torture. Despite what it said, it did not adhere to the Geneva Conventions. Even worse, it took the standard operating procedure of Camp Delta at Guantanamo Bay and threatened to expand it all over the world.

The President of the National Lawyers Guild Marjorie Cohn has stated that portions of the AFM protocol, especially the use of isolation and prolonged sleep deprivation, constitutes cruel, inhuman or degrading treatment or punishment and is illegal under the Common Article 3 of the Geneva Conventions, the U.N. Convention Against Torture and the International Covenant on Civil and Political Rights. Hina Shamsi, an attorney with the ACLU's National Security Project, has stated that portions of the AFM are "deeply problematic" and "would likely violate the War Crimes Act and Geneva," and at the very least "leave the door open for legal liability." Physicians for Human Rights and the Constitution Project have publicly called for the removal of problematic and abusive techniques from the AFM.

Yet, the interrogation manual is still praised by politicians, including then-presidential candidate Barack Obama, who in December 2007 said he would "have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors."

Viral Instructions for a Torture Paradigm

I call the covert actualization of torture in current Department of Defense interrogation policy the "viralization" of the Army Field Manual. Just as a computer virus inserts a seemingly harmless set of instructions or code into a computer's operating system, unnamed four-star combatant commanders insisted that a special "interrogation-control technique" be inserted into the new manual. In a computer, viral instructions morph into a destructive set of routines, which replicate and continue to pass the tainted instructions on to uninfected users.

The viral instructions in the AFM transform into an abusive and illegal torture program. Most of these "instructions" can be found hidden in the proverbial fine print of the document, in its very last appendix, labeled with no apparent irony as regards the mythology of James Bond, Appendix M.

Appendix M, titled "Restricted Interrogation Technique -- Separation," misrepresents itself from the very beginning. (One wonders if it was rewritten from an earlier draft, at a time when the Pentagon wanted to keep these procedures classified.) It is not actually a technique (singular), but a set of techniques, though one has to read deeply into its 10 pages of text and be somewhat sophisticated in the history of psychological torture procedures, to assemble a full view of the viral program.

This program is nothing less than the one established in researcher Albert Biderman's Chart of Coercion, which, as revealed by the recent Senate Armed Services Committee investigation into detainee abuse, was the blueprint used by SERE instructors at Guantanamo in late 2002 to teach abusive interrogation techniques. (SERE stands for Survival, Evasion, Resistance, Escape and is the military program to "inoculate" certain military personnel against torture or abusive treatment by an enemy that doesn't recognize Geneva protocol.)

The committee's investigations, along with an DOD Office of Inspector General report released last year, definitively proved that SERE instructors, some of whom were military psychologists who also worked as contract personnel for the CIA, reverse-engineered SERE's didactic and experiential program meant to protect U.S. POWs for use as torture on detainees at Guantanamo, Iraq and Afghanistan.

Army G-2 senior intelligence officer Lt. Gen. Jeff Kimmons described the "technique" of separation at a DOD briefing on Sept. 6, 2006, unveiling the "new" AFM:

... we include one restricted technique called separation, for use on a by-exception basis only with unlawful enemy combatants. That is, it's not authorized for use on prisoners of war and other protected persons.

Separation allows interrogators to keep unlawful enemy combatants apart from each other as a normal part of the interrogation process, so they can't coordinate their stories and so that we can compare answers to questions that interrogators have posed to each other without there having been collusion. It's for the same reason that police keep murder suspects separated while they're questioning them, although this is within an interrogation context.

Separation meets the standard for humane treatment, the single standard that exists across DOD, and it is enshrined in this manual.

This description is inconsistent with the explanation for separation given in the current Army Field Manual. Separation is not about the "normal interrogation process":

The use of separation should not be confused with the detainee-handling techniques approved in Appendix D. Specifically, the use of segregation during prisoner handling (Search, Silence, Segregate, Speed, Safeguard and Tag) should not be confused with the use of separation as a restricted interrogation technique….

Separation should be used as part of a well-orchestrated strategy involving the innovative application of unrestricted approach techniques. Separation requires special approval, judicious execution, special control measures and rigorous oversight.

Analyzing "Separation"

What kind of procedures, which the manual avers cannot be used on regular prisoners of war (who are covered by the Geneva Convention Relative to the Treatment of Prisoners of War), make up this special interrogation "technique," separation? In fact, it includes the following: solitary confinement, perceptual or sensory deprivation, sleep deprivation, the induction of fear and hopelessness, and the likely use of sensory overload, temperature or environmental manipulation, and any number of other techniques permitted elsewhere in the AFM, such as "Emotional Pride Down." As at Guantanamo and at prisons in Iraq and Afghanistan, a "multidisciplinary" team implements the program, including a behavioral science consultant (likely a psychologist).

The primary technique of the separation procedure is the physical isolation of the prisoner for up to 30 days, with further isolation possible upon approval of higher-ups. According to scientific expert Stuart Grassian, the use of isolation, or solitary confinement, causes "severe psychiatric harm." Some detainees will "suffer permanent harm as a result of such confinement." As long ago as 1961, psychiatrist Lawrence Hinkle Jr. wrote in a textbook on interrogations (emphasis added):

It is well known that prisoners, especially if they have not been isolated before, may develop a syndrome similar in most of its features to the "brain syndrome"... they cease to care about their utterances, dress and cleanliness. They become dulled, apathetic and depressed. In due time they become disoriented and confused; their memories become defective, and they experience hallucinations and delusions....

Classically, isolation has been used as a means of "making a man talk," simply because it is so often associated with a deterioration of thinking and behavior and is accompanied by an intense need for companionship and for talk. From the interrogator's viewpoint it has seemed to be the ideal way of "breaking down" a prisoner, because, to the unsophisticated, it seems to create precisely the state that the interrogator desires … However, the effect of isolation upon the brain function of the prisoner is much like that which occurs if he is beaten, starved or deprived of sleep.

Those prisoners who cannot be secured in sufficient isolation, presumably at a forward interrogation site, will be secured via "Field Expedient Separation," during which a both blindfold and earmuffs are put on a detainee for up to 12 hours. Again this is expandable upon official approval. The AFM warns that care must be taken to protect the blindfolded, earmuffed prisoner from self-injury, and the prisoner must be medically monitored. The AFM doesn't explain why this is necessary, but the reason is that such sensory deprivation is intolerable for some people and can lead to hallucinations and self-injurious behavior. The inclusion of a procedure that so obviously needs medical monitoring should be a red flag that it violates basic humane treatment.

The other main use of torture is Appendix M's provision for prolonged sleep deprivation, holding a prisoner to no more than four hours of sleep per night for 30 days. As with isolation and perceptual deprivation, this procedure can be prolonged with official approval. Sleep deprivation is used to break an individual down both physically and mentally. The literature on the corrosive effects of sleep deprivation is not difficult to find. Four hours of sleep per day for a month will decrease thyrotropin secretion and increase levels of cortisol, causing stress and high blood pressure. It impairs verbal processing and complex problem solving. Chronic sleep deprivation is "associated with irritability, depression and a reduced sense of well-being."

The AFM's Appendix M makes a lot of noise about forbidding sensory deprivation, then provides a definition of same that would describe none but the most extreme examples of sensory deprivation, all the while allowing its practice upon prisoners. Similarly, the document claims it is consistent with the Geneva Conventions and other human rights documents. It denies that prisoners held under separation will be treated to "excessive noise," "excessive dampness" or "excessive or inadequate heat, light or ventilation." But rather than appear convincing, these caveats seem to direct the interrogation team to just those kinds of procedures that should be used, as long as it is not judged "excessive." At the September 2006 briefing, Kimmons assured reporters that Appendix M had been legally vetted by "senior DOD figures at the secretarial level, by the Joint Staff, by each of the combatant commanders and their legal advisers, by each of the service secretaries and service chiefs and their legal advisers, in addition to the director of the Defense Intelligence Agency and the director of National Intelligence, who coordinated laterally with the CIA." It was also "favorably reviewed" by Attorney General Alberto Gonzales' Justice Department. This is not a legal vetting that inspires much confidence.

The total effect of combining all the procedures enumerated above, particularly in an atmosphere of fear and futility or hopelessness, is to produce a state not dissimilar to that described by Albert Biderman in his famous Chart of Coercion, as described elsewhere by this author and by Scott Shane of the New York Times. Social psychologist Biderman had studied the techniques of Soviet, Chinese and Korean interrogators and constructed a model of coercive interrogation that was later used by SERE interrogators at Guantanamo (as described above). Biderman's Chart of Coercion enumerates the key abusive techniques as isolation, monopolization of perception, induced debilitation and exhaustion, threats, occasional indulgences, demonstrating "omnipotence" and "omniscience" (i.e., complete control over a prisoner's fate), degradation and enforcement of trivial demands. What we have here, in sum, is what has come to be known in the 21st century as the Guantanamo model.

It is the intent of the Army Field Manual's Appendix M to institute the Guantanamo model across all military sites. The use of separation is supposed to be limited to "unlawful enemy combatants." Hina Shamsi, with the ACLU, notes that the Geneva Conventions allow for no status-based discrimination as the basis of differentiating interrogation techniques. The use of such different techniques "could lead to a conflicting and confusing situation," and the violation of domestic or international laws, according to Shamsi. Beyond that is the distinction of marking certain combatants as "unlawful," which is highly controversial and for which there seems to be no adequate precedent in the law of war.

One last example should suffice to demonstrate the perfidy upon which the Army Field Manual was rewritten. (The revamping of the AFM was supervised by Stephen Cambone, Rumsfeld's undersecretary of defense for intelligence, also notoriously in charge of the Pentagon's secretive sabotage and assassination teams, code-named Grey Fox.) In the last version of the AFM (FM 34-52), published in 1992, the use of fear-based techniques was divided into Fear Up Harsh and Fear Up Mild, with a strong warning issued that the use of Fear Up "has the greatest potential to violate the law of war." In the contemporary version of the AFM, the division of the technique into harsh and mild categories is abandoned, while the cautionary language is weakened. Meanwhile, the definition of Fear Up has changed as well.

From the 1992 manual:

The fear-up approach is the exploitation of a source's pre-existing fear during the period of capture and interrogation. (pp. 3-15)

In the 2006 manual, the definition adds a sinister new twist (emphasis added):

In the fear-up approach, the HUMINT [human intelligence] collector identifies a pre-existing fear or creates a fear within the source. He then links the elimination or reduction of the fear to cooperation on the part of the source. … The HUMINT collector should also be extremely careful that he does not create so much fear that the source becomes unresponsive. (pp. 8-10)

In a manner similar to the introduction of the harmful technique of sleep deprivation, the new policy of creating a new fear within a detainee is introduced with a simple grammatical clause. A few words inserted here and there, and the viral program is complete. (Interestingly, the old 1992 AFM says that "increased fear-up" is a "proven effective" technique, but elsewhere describes fear-up harsh as "usually a dead-end," interrogation-wise.)

The Fight Against the "New" Army Field Manual

With the start of a new administration and the swearing in of a new Congress, changes to President Bush's program of torture and abusive detention and interrogation are in the offing. The controversy over the possible nomination of CIA official John Brennan to the directorship of the Central Intelligence Agency, which led to a wide protest, including a letter critical of the choice addressed to President-elect Barack Obama and signed by 200 psychologists and mental health professionals, led to the withdrawal of Brennan from consideration.

As a new administration and Congress consider how to clean up the mess left them by the Bush administration, when it comes to the torture issue, many liberals in the political class are looking to a global adoption of the Army Field Manual as a kind of anodyne for this problem. An example of how far the virus has spread is the petition by the well-regarded Campaign to Ban Torture, signed by a plethora of "respected leaders," including Obama's nominee for White House National Security Adviser, retired Marine Gen. James L. Jones. Espousing a "golden rule" over interrogation practice, the CBT declaration states:

We will have one national standard for all U.S. personnel and agencies for the interrogation and treatment of prisoners. Currently, the best expression of that standard is the U.S. Army Field Manual, which will be used until any other interrogation technique has been approved based on the Golden Rule principle.

The Guantanamo virus is spreading. Its agent is Appendix M of the Army Field Manual. It will be very difficult to eradicate. It will require the effort of every person who believes in human rights and is opposed to torture to spread the word. A few crucial human rights and legal organizations have already spoken out against Appendix M, but we have yet to hear from groups such as Amnesty International, Human Rights First or the Center for the Victims of Torture. Congressmembers must be called. Letters to the editor must be written. Bloggers must give their unique independent commentary.

The AFM as constituted must not be made the "one national standard" until the virus is eradicated. Appendix M must be rescinded in its totality, and portions of the document, such as the section on Fear Up, rewritten. Otherwise, Bush's and Rumsfeld's attempt to sneak coercive methods of interrogation into the main document of human intelligence gathering used by the military will succeed.

This effort must be combined, as well, with efforts to strip the CIA of its use of "enhanced interrogation methods," which amount to barbaric torture. An independent commission must be established to investigate and publicize the long history of the use of torture and abusive interrogation research and practice by the United States, to ensure that this kind of crime is firmly eradicated and will not happen again. An independent prosecutor should be given full authority to pursue appropriate investigation and indictments.

The time that approaches is one of great opportunity and great danger. Hopefully, U.S. society will rise to the challenges that face it.

[My thanks to Liliana Segura, Marjorie Cohn, and Hina Shamsi for help with this piece. They are not responsible for the opinions or any errors herein, which are entirely my own.]

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