Gitmo Detainee’s Body Returned to Yemen, New Details on His Death Revealed

crossposted from The Dissenter/FDL

U.S. Southern Command (SOUTHCOM) said today that the body of Allal Ab-Aljallil Abd al-Rahman Abd (aka Adnan Farhan Abdul Latif) was repatriated to Yemen. The SOUTHCOM statement did not indicate the date or time the body was returned, nor who received the remains.

On November 26, Jason Leopold at Truthout broke the story that Latif’s death would be attributed to suicide. Two days later, Charlie Savage at The New York Times reported that the autopsy would show Latif, who supposedly was found unconscious in his cell on September 8, died from an overdose of psychiatric medication.

Meanwhile, Latif’s body languished at a US Air Force base in Germany, supposedly the object of a dispute between the Yemen and U.S. governments over the former receiving both an autopsy and the results of the full U.S. investigation into the death. The autopsy report was sent to Yemen on Nov. 8. Subsequently, the Yemen government said the body was expected to be sent to them any day, but the U.S. government said the hold-up over release was on the Yemen side. Meanwhile, Latif’s family in Yemen could get very little information about what was going on.

“Acute Pneumonia”

SOUTHCOM’S statement is the first official announcement about the cause of Latif’s death. As terse as it is, it does include somewhat surprising new information.

The medical examiner concluded that the death was a suicide. Mr. Latif died of a self-induced overdose of prescription medication. The medical examiner also concluded that acute pneumonia was a contributing factor in his death.

The revelation that, according to the US military, “acute pneumonia was a contributing factor” to the death raises a host of questions. While pneumonia can develop quite quickly, it is worth noting that Captain Robert T. Durand told Jason Leopold in a statement back on October 8 that Latif had been “medically cleared for transfer to Camp 5″ only a few days before his death. (Thanks to Jason for pointing that out to me.) Camp 5 is a high-security block at the Cuba-based prison, and Latif was reportedly in solitary confinement in a disciplinary wing of the facility.

Even if Latif looked well enough for transfer from the Detention Hospital where he had been held, there is a new question as to how his medical condition went unnoticed when the detainee is checked on multiple times a day, and indeed, per hour. It is also the case that the detainee’s cell is monitored by 24-hour video surveillance. Jason Leopold and I detailed in an article the other day just how difficult it would have been for Latif to have hoarded medications under such a strict regime.

The symptoms of acute pneumonia, moreover, are usually fairly dramatic — shaking, difficulty breathing, coughing — and one wonders why in the day or so before he died he had not been medically attended for pneumonia. How did that go unrecognized? Latif complained in meetings with his attorney that medical care and withholding of medications from hunger strikers in particular was a way Guantanamo authorities tried to control or break prisoners.

Medical abuse?

Other researchers have also documented serious problems with medical care at Guantanamo. In an April 2011 article for PLoS Medicine, Dr. Vincent Iacopino, senior medical advisor to Physicians for Human Rights, and Dr. Stephen Xenakis, a psychiatrist and retired US Army Brigadier General, wrote:

Medical doctors and mental health personnel assigned to the US Department of Defense neglected and/or concealed medical evidence of intentional harm. The full extent of medical complicity in US torture practices will not be known until there is a thorough, impartial investigation including relevant classified information. We believe that, until such time as such an investigation is undertaken, and those responsible for torture are held accountable, the ethical integrity of medical and other healing professions remains compromised.

The U.S. government has long contended that detainees are treated humanely, and that medical issues are given as much care as that of any U.S. military personnel.

Further information from DoD about the circumstances surrounding the repatriation and the autopsy result has been difficult to obtain, as the voice mailbox at the Public Affairs Office of the Secretary of Defense (OSD-PA) is “full.”

However, late today, I did receive an email back from an unnamed Duty Officer, Defense Press Office. I had asked SOUTHCOM a number of questions, including what medications Latif supposedly overdosed with; when Latif was diagnosed with pneumonia; why had he been “medically cleared” earlier and by whom; and why the body was finally released and what its disposition would be once in Yemen.

OSD-PA replied, “Jeffrey, the US Southern Command press release represents the extent to which the Department is currently prepared to publicly discuss the matter. Until such time as any future statements by the Department may be made, we refer you to the Yemeni government. Thank you.”

Meanwhile, the message machine at the press affairs office at the Yemen Embassy in Washington, D.C. also says it is “full” and can’t currently take messages. An email query to the embassy had not been returned at time of publication for this article.

[UPDATE, 12/16/12, 8:00 AM: Yemen embassy spokesperson Mohammed Albasha returned my queries early Sunday morning via Twitter. Asked when the family might be receiving Latif's remains, and whether there were any plans for a second autopsy, Albasha replied, "subject is now between the family and the state[.] not sure what or when the next step will be executed."]

In a brief post at Emptywheel, Marcy Wheeler notes the irony of the SOUTHCOM press release reiterating the statement DoD always makes, viz. “Joint Task Force Guantanamo continues to provide safe, humane, and lawful care and custody of detainees. This mission is being performed professionally, transparently, and humanely by the men and women of Joint Task Force Guantanamo.”

You could basically take issue with every modifier SOUTHCOM uses to describe JTF-Gitmo’s mission and its treatment of prisoners. Wheeler focuses on the ostensible “transparency”:

It took two and a half months to learn Latif committed suicide. We’re only now learning he suffered from acute pneumonia. And we still do not officially know how badly his head injury–the one the government claims didn’t really exist so they could keep him detained–expressed itself while at Gitmo, much less the drugs he was being given, ostensibly for that and mental health problems.

Let me focus for just a moment on the “safe and humane” claim.

Other Gitmo Deaths in the Light of What Is Known About Latif

Latif’s death and the secrecy surrounding it reminds me of the way other deaths at Guantanamo have been treated. Last February, I noted in a Truthout article that the released autopsies of two purported Guantanamo “suicides” had raised real questions about their treatment and the way they died. (Later, the UN Special Rappporteur for Extrajudicial, Summary and Arbitrary Executions announced he was going to look into these cases.)

One detainee, Abdul Rahman Al Amri, was, like Latif, found in his isolation cell at Guantanamo. Al Amri was reportedly discovered with his hands tied behind his back. The autopsy report stated, “Investigation reveals that a razor blade from a razor was used to cut strips from one or more bed sheets and a ligature was fashioned by braiding these strips together.”

But as I reported at the time, there were strict rules around the possession of razors by detainees. How had Al Amri gotten a razor, hidden it from the many searches, and assembled the ligature (out of what were supposedly “tear-proof” sheets, by the way) with all the surveillance (including video surveillance in the cell)?

The revelation reported by Jason Leopold and I in a story the other day --  that Latif claimed in a letter to his attorney David Remes in May 2010 that guards were placing “contraband” article in his cell that could be used for self-harm -- may have some relevance to the Al Amri case.

Latif wrote:

Furthermore, and to make you believe that they want me to die and to kill me; they prevented me from having anything that can help me live normally. They don’t give me books, a blanket, soap, medical supplies that I need for my hearing, eye glasses, tooth paste, medical shoes or a neck pillow. Instead they give me contraband items like a spoon to hurt myself with it right after all the pressure they exerted on me as I mentioned in the beginning of this letter. They even gave me a big pair of scissors. It was given to me by the person responsible for camp five. This made me ask for the police.

Could Al Amri have been given a razor while guards looked the other way? Like Latif, Al Amri was a hunger striker and considered a troublemaker.

So was Mohammad Ahmed Abdullah Saleh Al Hanashi, who was found dead in an isolation cell in the psychiatric ward, where surveillance is supposed to be if anything even stricter. Al Hanashi was said to be depressed, and upset that he was not allowed a walker. He supposedly strangled himself to death with the elastic from his underwear — except, as I reported, the kind of underwear in use at Guantanamo at this time did not have elastic bands. Not surprisingly, the actual ligature for the “suicide” was never provided to medical examiners. Naval investigators provided an sample for the autopsy they said was similar to what Al Hanashi used. Where was the original ligature?

Of course, there was also the incredible reporting by Scott Horton at Harper’s, which relied on reports by former Guantanamo Army guard Joe Hickman and other guards to show that the official government story about the deaths of three Guantanamo suicides in June 2006 was not coherent. (Investigators at Seton Hall School of Law’s Center for Policy and Research also examined critically the government report.)

While I have FOIA requests for the NCIS investigations of both the Al Amri and Al Hanashi deaths, nothing has been released as yet. The Al Hanashi request is nearly a year old now.

On November 28, the ACLU filed FOIA requests for the autopsy reports for the last three prisoners to die at Guantanamo: Latif, along with Awal Gul, and Hajji Nassim (also known as “Inayatullah”). The three died on September 8, 2012, February 2, 2012, and May 18, 2011, respectively. While not much has been written about the latter two cases, there are important lingering questions about these deaths as well. Gul’s family did not accept the verdict of death by heart attack, which Nassim’s death seemed especially strange, as he supposedly hanged himself outside in the recreation yard, where there are plenty of guards present.

Little bit by little bit we are learning more about the death of Adnan Latif, but there is much more to learn. I hope the release of Adnan Latif’s body and its final internment will help bring his family some emotional release. They want to know what happened to their brother and son. They deserve to know. The American people, too, deserve to know what happened as well.

But on one level we already know, whether by his own hand or by his horrendous treatment and the living death assigned him via the Obama policy of indefinite detention, Guantanamo certainly killed Adnan Latif.

The Struggle to Close Guantanamo

Next month, the Guantanamo prison will go into its 11th year of holding so-called “war on terror” prisoners. Since Obama’s reelection, human rights groups have started to put pressure on President Obama to hold true to his January 2009 promise to close the prison.

In an Twitter exchange with me last month, Zeke Johnson, Director of Amnesty International USA’s Security with Human Rights Campaign, said prisoners like former British resident Shaker Aamer could be transferred out of Guantanamo under the NDAA’s section 1028. Johnson said Congress should “withdraw [the] AUMF (incl from NDAA) and ‘global war’ idea.”

Furthermore, Zeke wrote, “all detainees must either be charged with recognizably criminal offenses and prosecuted fairly in civilian court without the death penalty, or released to countries that will respect their human rights. And there must be accoutntability for torture & other abuses (investigation, prosecution and remedy).” Johnson indicated more regarding AI’s position could be accessed at their website.

Recently, AI has announced its Write #4Rights campaign. It is asking people to get involved in the case of Guantánamo detainee Hussain Salem Mohammed Almerfedi. Almerfedi, like Latif, a Yemeni cleared for release by both Bush and Obama administrations, has been held for over nine years. Originally, AI meant to highlight Latif as part of their campaign, but that was not to be.

How many more like Latif will die, victimized by a cruel and insane system, by what the assistant commandant of the U.S. Army Intelligence Center and School at Ft. Huachuca once called “America’s ‘Battle Lab’ in the war on terror.”

UK Judge OKs Wikileaks Cables in Chagos Islanders' Investigation

The other day, Marcy Wheeler took Judge Colleen Kollar-Kotelly to task for upholding "the government’s right to withhold cables already released via WikiLeaks under FOIA." She quotes the judge's ruling in the ACLU lawsuit to obtain via FOIA the State Department cables released by Wikileaks (and for which Bradley Manning has falsely been indicted for espionage):

"No matter how extensive, the WikiLeaks disclosure is no substitute for an official acknowledgement and the ACLU has not shown that the Executive has officially acknowledged that the specific information at issue was a part of the WikiLeaks disclosure."

Wheeler has been following the case for some time, noting how the government is withholding already publicly released (but not officially released!) documents that point to the government's torture cover-up, not to mention "admissions of crime, including murder, torture, and kidnapping."

What I wanted to point out is a recent news article which shows how different is Judge Kollar-Kotelly's ruling from that of UK High Justice Stanley Burton. Burton, according to a Press Association (PA) article published July 25 at Huffington Post, in a ruling regarding claims by expelled Chagos Islanders against the UK government, specifically allowed the use of Wikileaks cables by the claimants. The expulsion was, as I pointed out in an article on the subject some months back, to allow for the presence of the huge U.S. Diego Garcia naval base (where prisoners have reported to have been disappeared or tortured).

PA reported the situation:

They say their case is supported by a cable obtained by WikiLeaks, sent by the US embassy in London to the US State Department in Washington in May 2009....

The judge said: "I understand why it is the policy of HM Government neither to confirm nor deny the genuineness of leaked documents, save in exceptional circumstances, particularly where, as here, the documents in question are not those produced or received by the UK Government.

"However, the documents have been leaked and indeed widely published.

He ruled: "I do not see how the present claim can be fairly or justly determined without resolving the allegation made by the claimant, based on the WikiLeaks documents."

I hope ACLU will add this fact to any appeal they make in their FOIA. But the larger issue is how craven the U.S. judiciary has become after ten years of heightened "war against terror," having lost all common sense in the drive to protect U.S. power, no matter how brutally applied.

Alyona Show Interviews Jason Leopold on DoD Drugging of Detainees

Alyona Mikovski at RT TV interviewed Jason Leopold, co-author of our July 11 Truthout article, DoD Report Reveals Some Detainees Interrogated While Drugged, Others "Chemically Restrained.

The Truthout article was noted by numerous news outlets, including Associated Press, the UK Daily Mail, and Wired Magazine. Kevin Gosztola also interviewed me about what the Inspector General report, "Investigation of Allegations of the Use of Mind-Altering Drugs to Facilitate Interrogations of Detainees" (PDF), was really all about.



If you're not done wanting to know more about the IG report and the whole issue of drugging the "war on terror" detainees, you might also want to listen to Scott Horton at The Scott Horton Show interview Jason on the latest revelations.

For more penetrating, original commentary on the IG report and the drugging issue in general, see Andy Worthington and Marcy Wheeler's recent blog postings.

Slapping David Shedd, Part 2, or How to Spin the Torture Story in Two Simple Lessons

Marcy Wheeler's over at Emptywheel picked up on Daniel Klaidman's version of Bush CIA Director Michael Hayden's December 2008 briefing of then-President-elect Barack Obama, and in particular of Hayden's defense of certain interrogation techniques then in use by the CIA.

Wheeler notes the discrepancy between the kinds of techniques Hayden said were in use at that time and the techniques approved by Bush's Department of Justice Office of Legal Council in the final year of that administration. Steven Bradbury was the author of these memos, of which the most substantive appears to be his July 20, 2007 memo to John Rizzo, then-CIA Acting General Counsel on "Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques That May Be Used by the CIA in the Interrogation of High Value Al Qaeda Detainees."

Now in that memo, the techniques the CIA proposed as "necessary" were "dietary manipulation," "extended sleep deprivation," "insult (or facial) slap," "facial hold," "attention grasp," and "abdominal slap." The latter four are meant to shock the detainees, who supposedly (and this is a lie on Bradbury's part) believe the U.S. will not touch them during interrogation.

How Bradbury can get away with such a statement three years after the Abu Ghraib revelations is strange enough, but the Manchester Manual explicitly told detainees to expect physical maltreatment from intelligence agency interrogations, as former FBI interrogator Ali Soufan pointed out in his book The Black Banners: "It was on the basis of the information in this manual that the two [former SERE psychologists James Mitchell and Bruce Jessen] reportedly concluded that harsh techniques would be needed to break al-Qaeda detainees.... This constituted a misreading of the Manchester manual and in fact Boris’s [CIA/EIT] techniques played into what the manual instructed captured terrorists to do.”

But that's not what I'm here to write about today.

Klaidman's tale of the Hayden briefing was actually told once before, but I've not seen anyone note that. Bob Woodward wrote about it in his book, Obama's Wars, back in 2010, and I analyzed that portion of Woodward's narrative in a posting at Firedoglake not long after.

Learn this Mantra: "Debility, Dread, Dependency"

In Woodward's earlier version of the account of Hayden’s Shedd shaking we get a somewhat different listing of what techniques Hayden was selling Obama.

Woodward's version:

Hayden said: Isolation of the detainee; noise or loud music; and lights in the cells 24 hours a day. There was limited use of shackles when moving a prisoner or when the prisoner was a danger. In addition, blindfolds were used when moving prisoners or when the prisoners might gain information that could compromise the security of the facility.

And then followed Hayden's demonstration of the facial slap upon Director of National Intelligence Deputy Director for Policy Shedd. "Then [Hayden] shook the deputy DNI." The latter could be construed as the "attention grasp," which, per Bradbury's memo cited above, used a towel or other collaring device... to prevent any whiplash from the sudden motion."


While Woodward reports Shedd was "shaken," he doesn't mention "walling." He may not have had the entire story and his reporting of Shedd being shaken may have lacked the missing explanation about the "flexible artificial wall" Klaiman's sources provide. Or there may not have ever been any discussion of "walling," and it was about "attention grasp" all along, with "walling" added later, as I explain below.

Klaidman's version:

Not long into his presentation., Hayden called Shedd over. Suddenly, unexpectedly, Hayden slapped Shedd's face. Then he grabbed him by the lapels and started to shake him. He'd wanted to throw him up against the wall during this demonstration, but there were chairs in the way. Instead he explained to Obama and his aides about the interrogation technique known as "walling," in which detainees were thrown against a flexible artificial wall that made a loud noise on impact but cause little physical pain.

Hayden went on to explain that the only other three techniques still used then were playing loud music, keeping lights on all day and sleep deprivation. He didn't mention that sleep deprivation was accomplished by hanging prisoners from ceiling hooks.

So, whoever Klaiman's sources were, they left out the use of isolation and use of blindfolds on the detainees, itself a form of sensory deprivation. And where do we find such techniques used otherwise? In the Army Field Manual on interrogation's Appendix M, precisely the approved standard for all interrogation per Obama's Executive Order. Can this sudden switch in narrative be accidental?

Klaiman's sources elide the blindfolding entirely, while Isolation is replaced (supposedly) by Walling, as there must be only "six techniques," and the narrative is bound by the numerical restriction, which was originally laid out in Bradbury's 2007 memo.

Even more, while Wheeler notes that "Walling" is not an approved technique in the latter-stage Bush OLC memos, it's worth noting that neither is Isolation, or the sensory overload techniques noted by both Woodward and Klaiman ("loud music," 24-hour lights).

Every opponent of torture should note carefully this very important statement from Bradbury's 7/20/07 memo:

The [CIA] program is designed to dislodge the detainee’s expectations about how he will be treated in U.S. custody, to create a situation in which he feels that he is not in control, and to establish a relationship of dependence on the part of the detainee.

This is not spin, but the psychological core of the program, based, as I’ve repeatedly emphasized, on decades-old research showing that the induction of Debility (sleep deprivation, isolation, dietary restrictions) and Dread (the physical assaults, dislocating the expectations, humiliation) produced Dependency for the purpose of CONTROL.

(Interested readers should see how this is all documented in early writings by Bruce Jessen, in a story Jason Leopold and I wrote at Truthout in March 2011.)

As I wrote in my first Shedd-related posting (bold emphasis added here):

From reading this account [Woodward's], apart from the hilarious bit of play-acting with the ever-obliging David Shedd, it’s difficult to see what six of the EITs were retained, and what, besides waterboarding, was eliminated. For one thing, Hayden’s reply focuses on techniques that were not part of the EITs — isolation, sensory overload, and partial sensory deprivation — while demonstrating by a slap to O’Connell’s deputy that “Facial or insult slap” was still in use.

Hayden then makes his play to keep “these methods” under an Obama administration, because “the very existence of the interrogation program was more important than its content.” The CIA director told the President-elect, “Terrorists would know they faced a more severe interrogation if picked up by the CIA than by the military, which used the Army Field Manual.”

But how would the terrorists know this, when even I can’t figure out what exactly the U.S. intelligence agencies do? Woodward quotes Hayden in an unintentional moment of self-revelation. For the CIA, the form is more important that the content. The “terrorists” don’t really know, but they believe they know they can expect something terrible, something especially bad. The point of this is to engender fear. And fear is an essential component to psychological torture. It enhances the effects of sensory overload and sensory deprivation, and contributes to the psychological breakdown of the victim. The use of SERE trainees as experimental subjects for coercive interrogation and techniques did not begin in 2001 or 2002 — it began at least over 50 years ago.

It's easy to get righteously indignant over the torture program of the CIA, but I'm amazed at how easy it's been to be lulled over the torture program inserted into the 2006 Army Field Manual. I think it's not an outrageous thought to believe that in the interim between Woodward's tale of the Hayden meeting and the Shedd slap-heard-round-the-intertubes and the one told by Klaiman, someone said "hey, icksnay on the the isolation-ay."

If Obama Withdrew Yoo, Bradbury Torture Memos, What Gov't Opinion Now Covers the AFM & Appendix M?

An article in the July-Sept. 2004 edition of the journal Military Intelligence (PDF) sheds further light on the origins of the Army Field Manual (AFM) on interrogation, FM 2-22.3, HUMINT Collector Operations (PDF), that became operational in September 2006. The AFM became the de jure standard for government interrogations in the "Global War on Terror" as a matter of policy with the passing of the Detainee Treatment Act of 2005 (DTA). Except, in 2005, the AFM was an earlier version.

By September 2006, the newer version included less restrictive controls on a number of questionable interrogation techniques, and had seriously lightened the restriction on the use of drugs in interrogations. It also included an annex to the manual, Appendix M, that was meant strictly for detainees not covered by Geneva POW protections, i.e., the detainees at Guantanamo and elsewhere. Appendix M allowed for the use of isolation, sleep deprivation, sensory deprivation (as a "field expedient" method), and anticipated at least some use of environmental and diet "manipulations."

But back in Summer 2004, Command Sergeant Major Lawrence J. Haubrich, U.S. Army Military Intelligence Corps, writing for the journal Military Intelligence (PDF) about military ethics in the aftermath of the Abu Ghraib scandal, noted that the new AFM had already been vetted by Judge Advocate General corps' [JAG] legal officials.

The DA [Dept. of the Army] Office of the JAG and JAG School reviewed each draft of FM 2-22.3, HUMINT Collector Operations, and each draft has been (and still is) in compliance with all Geneva Conventions, international agreements, and U.S. law. Additionally, the manual clarifies the responsibilities of HUMINT collectors and clearly delineates between HUMINT collection and other activities associated with internment operations. Finally, the manual now includes HUMINT collection techniques like strategic debriefing and elicitation as a result of the recent HUMINT and Counterintelligence Integrated Concept Team and lessons learned.

We can't, of course, know what drafts the JAG officials had seen in 2004. We don't know, for instance, whether or to what degree the techniques that ended up in the final document's Appendix M were then included in the earlier drafts. The fact that the manual went through numerous iterations was noted in a couple of blog posts by Marcy Wheeler, who noted the existence of a little examined Bush-era Office of Legal Counsel 2006 memorandum (PDF) on the AFM and its Appendix M.

"The Department of Defense ("DOD") has asked us to review for form and legality the revised drafts of the Army Field Manua1 2-22.3 ("Human Intelligence Collection Operations"), Appendix M of FM2-22.3 ("Restricted Interrogations Techniques"), and the Policy Directive regarding DOD's Detainee Program," Acting Attorney General Stephen Bradbury wrote in an April 13, 2006 "Memorandum for the Files." Naturally, Bradbury found that Appendix M was "consistent with the requirements of the law, in particular with the requirements of the Detainee Treatment Act of 2005..."

Wheeler noticed a couple of years ago, however, that the description of Appendix M in the Bradbury memorandum was not congruent with the version that was ultimately published.

Speaking of all those references to specific paragraphs of Appendix M, note that Bradbury wrote this memo on April 13, 2006. Appendix M was not finalized and released until September 6, 2006. And the contents of Appendix M changed significantly between the time Bradbury wrote his approval letter and the time the Appendix was put into effect five months latter.... Even the title changed–from the plural “Restricted Interrogation Techniques” to the singular “Restricted Interrogation Technique–Separation”....

A couple of examples of some of the changes Wheeler pointed out (bold emphases in original):

Bradbury cites M-23 for language limiting the use of Appendix M only to DOD interrogators specially trained and certified to use these techniques; that language now appears in M-22, but the paragraph now authorizes properly trained contract interrogators and “non-DOD personnel” to use the techniques as well. 

Bradbury cites M-21 for medical limits, including that “Detainees determined to be unfit for interrogation may not be interrogated” (note, this does not appear to be a direct citation from the appendix, but rather Bradbury’s summary of it); in the current Appendix, language on medical oversight appears in several places (M-16, M-20, M-23, M-24, M-30), but never includes an explicit restriction against using the techniques on an unfit detainee....

Then, just last August, Wheeler noted this in a legal opinion issued in the Donald Vance/Nathan Ertel lawsuit against Donald Rumsfeld for the torture they suffered when falsely held prisoners in Iraq:

The plaintiffs contend that, after the enactment of the Detainee Treatment Act, Secretary Rumsfeld continued to condone the use of techniques from outside the Army Field Manual. ¶ 244. They allege that on the same day that Congress passed the Detainee Treatment Act in December 2005, Secretary Rumsfeld added ten classified pages to the Field Manual, which included cruel, inhuman, and degrading techniques, such as those allegedly used on the plaintiffs (the plaintiffs refer to this as “the December Field Manual”). Id. The defendants describe this allegation as speculative and untrue, but we must accept these well-pled allegations as true at the Rule 12(b)(6) stage of the proceedings.8 

On appeal, the plaintiffs 8 cite a newspaper article reporting on the development of this classified set of interrogation methods. See Eric Schmitt, “New Army Rules May Snarl Talks with McCain on Detainee Issue,” New York Times (Dec. 14, 2005), available at http://www.nytimes.com/2005/12/14/politics/14detain.html (last accessed Aug. 4, 2011) (“The Army has approved a new, classified set of interrogation methods... The techniques are included in a 10-page classified addendum to a new Army field manual...”). The plaintiffs contend that Secretary Rumsfeld eventually abandoned efforts to classify the Field Manual, but that the “December Field Manual” was in operation during their detention and was not replaced until September 2006, after plaintiffs had been released, when a new field manual (Field Manual 2-22.3) was instituted.

This is evidence of the likelihood that the changes to the AFM materially changed it from what the JAG officials vetted in 2004. Nevertheless, I don't believe we have heard any protest or even a peep of protest from JAGs or other military legal sources over the AFM that was ultimately issued. The Bradbury memorandum itself is a deeply dishonest document, and relies heavily for its opinion on the earlier OLC memos by Yoo, Bybee, and Bradbury himself. In the memorandum, Bradbury cites the earlier OCL torture memos as having "previously concluded that techniques virtually identical to these [i.e., in Appendix M] are consistent with applicable U.S. legal obligations..."

He then refers readers to the July 14, 2004 testimony of Patrick F. Philbin before the House Select Committee on Intelligence (PDF). "There is no need to revisit those determinations here," Bradbury wrote. But since the Obama administration withdrew by Executive Order (13491) "All executive directives, orders, and regulations... from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals," where does that leave the legal assurances regarding Appendix M?

 This question is of high importance as, even though numerous human rights organizations (Center for Constitutional Rights, Physicians for Human Rights, Amnesty International, Open Society Foundations, and others) have expressed grave misgivings about the abuse inherent in the current Army Field Manual instructions, the government, including key Democrats on the Intelligence and Armed Services committees, and the Obama administration itself, support the current AFM as the relevant and sufficient standard for all U.S. government military and CIA interrogations.

The inadequacy of the Bradbury memorandum in vetting "legal" techniques for interrogation, techniques said to be "Geneva compliant" is laughably belied by the fact that four of the six "restricted interrogation techniques" discussed by Bradbury are redacted in the declassified release of the memorandum. Truly, the government must think we can't see what is right before our eyes.

Additionally, of the two techniques openly discussed -- "Mutt and Jeff" (Good cop/Bad cop) and "False Flag -- both were ultimately incorporated into the main text of the final AMF draft. Even though the other techniques were left unclassified in the final version, the government still censors the techniques Bradbury was describing in his 2006 memo.

In a particularly Bradburyian moment of bad conscience, or possibly only to cover his ass, the former top Bush lawyer remarks in a footnote, the "six restricted interrogation techniques" might not satisfy the DTA if used on "all DoD detainees" (italics in original). Even more: "Nor does our analysis suggest that these techniques would be lawful if used in the criminal justice process as a means of obtaining information about ordinary crimes."

Hence we can see the result of the Bush-Gonzales-Yoo removal of the GWOT detainees from protected POW status soon after 9/11. Since Appendix M is still used in interrogations, we must conclude the Obama administration has never withdrawn the order that removed Al Qaeda/Taliban and associated prisoners from Geneva protections. Or has the administration has issued new opinions that have never been made public?

It must not matter to the Congressional oversight mavens, who have said not a peep about these issues, and continue to push the AFM and Appendix M. Nor does the proud JAG corps, who in some cases were known to protest the torture as it unfolded at Guantanamo, or the unfairness of the "Star Chamber" military commissions process, have any update I know of from their early stamp of approval given to the AFM.

One could not hope for much from a government that slaughtered two million Indochinese, and was never held accountable for that and many crimes that followed. It may be tilting at windmills to believe that the ongoing use of torture, even as one version of it is enshrined now in a formal military document, would become a matter of some social protest or media condemnation. This is a society and a nation totally adrift in a sea of moral nihilism when it comes to military and intelligence matters.

Psychologizing Bruce Ivins: Who are the Amerithrax Behavioral Analysis Experts?

The investigation by the "Amerithrax Expert Behavioral Analysis Panel" on "the mental health issues" of accused anthrax mailer Dr. Bruce Ivins purports to have been undertaken with "no predispositions regarding Dr. Ivin's guilt or innocence." Yet the report (PDF here of the released partial redacted version) says the Panel's review of sealed psychiatric records "does support the Department of Justice's (DOJ's) determination that he was responsible.

In a separate article by Marcy Wheeler earlier today, she points out that the report totally accepts the allegation that the anthrax spores originated from flask RMR-1029, and that therefore Ivins had "the motivation and the means" to carry out the attack. Of course, as Wheeler notes, the National Academy of Sciences recently said that there is insufficient scientific evidence to back up DOJ's conclusion regarding this. (Jim White also wrote about the NAS report when it first came out.) Wheeler's article also points out other inconsistencies and illogical aspects of the Panel's report.

I wish to concentrate a bit more on the idea this panel had no "predispositions." Unfortunately, just as the released summary leaves out over 250 pages of the report, including its case narrative and "behavioral analysis and interpretation", that unreleased portion also leaves out the biographies included about the Panel's members. As a result, the lack of presented evidence makes it extremely difficult to comment about the conclusions noted in the Executive Summary regarding Ivins' supposed penchant for "revenge", his purported tendencies towards exploitation and manipulation (as they allege), his being "skilled in deceit", his "obsessions," his "strange and traumatic childhood," and "his desperate need for personal validation," among other post hoc conclusions made by the Panel's authors.

While the lack of evidence makes it difficult to swallow what sounds like character assassination, we do at least have the list of panel members by which to examine the neutral disinterest the forensic psychiatric examination should demand of those who are investigating the background of Dr. Ivins. Instead, what a brief review of the panel's bona fides reveals is an overwhelming stacking of this "expert" panel by doctors and others who are deeply beholden to government interests, and in particular to security agencies, including those involved in bioterrorism security. For such individuals, it is difficult to see that they would buck the position of the FBI and DOJ that Ivins was guilty.

Who are the Behavioral Experts?

As an article at the Los Angeles Times points out, without further elaborating, they weren't all behavioral experts:

The behavioral panel was formed in late 2009 at the suggestion of Saathoff, people familiar with the matter said. Saathoff appointed the remaining panelists: five other psychiatrists, two officials from the American Red Cross and a physician-toxicologist.

The addition of the Red Cross members is curious, especially since Ivins is accused of joining the Red Cross at the time of the anthrax mailings to gain self-importance as an anthrax expert, and to appear "as a prophet and as a defender of the nation" to a woman he was reportedly obsessed with. Indeed, the report has a nine-page appendix dedicated to Ivins and the Red Cross, which has not been published publicly.

In any case, one of the Red Cross personnel is in fact the vice-chair of the Panel, Gerald DeFrancisco, listed as President, Humanitarian Services, American National Red Cross. DeFrancisco is also on the Board of Directors of Research Strategies Network (RSN), the 2008-founded “professional services organization... whose missions support the national security of the United States and its allies.” RSN is the publisher and copyright holder of the Expert Panel's report. The Panel Chair is Dr. Gregory Saathoff, who is also President of RSN, while the Chairman of RSN is former Reagan-era Attorney General Edward Meese.

Saathoff specifically cites "guidance" by Meese in the making of the Ivins report, as well as that of another RSN board member, former U.S. senator Chuck Robb. Among other things, Robb is former President Bush, Jr.'s co-chairman to the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. He is also on the board of Defense Department-DARPA-linked Mitre Corporation. Other RSN board members are also linked to the military. As far as DeFrancisco goes, it's hard to know what expertise he brings to the Panel, as formerly he worked at AT&T as Vice President of Business Innovation, and Executive Vice President of Broadband & Internet Services, as well as CEO at AT&T Alascom, a $300 million AT&T subsidiary.

The other Red Cross member of the panel is Joseph C. White, listed as Senior Vice President, Chapter Operations, American National Red Cross. White is a banker, the former Chairman and CEO of Boatmen’s Bancshares, and Vice President in Investor Relations at Fleishman-Hillard. He retired from Bank of America. But he was also "chief executive officer of the St. Louis Area Chapter of the Red Cross," when he "was sworn in January 10 [2008] as a member of the Emergency Response Senior Advisory Committee. The committee is one of five panels that advise the Homeland Security Advisory Council (HSAC), which provides recommendations to DHS Secretary Michael Chertoff on homeland security."

Among the actual doctors, we have Dr. Sally C. Johnson, listed as Professor, Department of Psychiatry at University of North Carolina, Chapel Hill. She may be best known as one of the forensic psychiatric examiners of Theodore Kaczynski, but more recently, she testified regarding the fitness of supposed Al Qaeda-linked suspect Dr. Aafia Siddique to stand trial for attempted murder. In her written report on Siddique, "Johnson left a warning... saying that in spite of Siddiqui’s frail and timid appearance – she has weighed as little as 90 pounds – ‘her potential for aggression towards herself or others might be underestimated.’"

Then there is Dr. David Benedek, listed as Professor, Department of Psychiatry, Uniformed Services University School of Medicine. Dr. Benedek has served at Guantanamo, although we don't know in what capacity. He was also acting as an army psychiatrist on the panel which consulted with others about Nidal Hasan in Spring 2008. Apparently, they failed to find him dangerous at that time, for which I can't fault Dr. Benedek, as it is a notorious fact that forensic evaluations of dangerousness are terribly unreliable, eliciting high levels of false positives, and a failure to distinguish who will or won't be dangerous. Unfortunately, the panel's executive summary never refers to this poor forensic record in determining who is or isn't dangerous while they put forth their certain but "circumstantial" evidence regarding the state of mind of the late Dr. Ivins.

Interestingly, Dr. Benedek was on a 2003 panel presentation on "Psychological Reactions to Chemical, Biological, and Radiological Events" at the Annual Meeting of Psychiatry and the Law, along with another military psychiatrist, who was at Guantanamo, Col. Elspeth Ritchie, who was Psychiatry Consultant to the US Army Surgeon General, and involved in psychiatric examinations for the government of at least a few of the detainees to come before the military commissions, including Salim Hamden.

Another panel member, Dr. Ronald Schouten (MD and JD) is listed as Director of the Law and Psychiatry Service, Massachusetts General Hospital, Harvard University School of Medicine. A forensic psychitrist, Dr. Schouten also "served as a subject matter expert for the Biological Threat Classification Program of the Department of Homeland Security and has testified before the Congressional Subcommittee on Prevention of Nuclear and Biological Attack.

And yet another panel member has government connections, as Dr. Anita Everett, listed as Section Director, Community and General Psychiatry at Johns Hopkins University School of Medicine, is a senior medical advisor on psychiatric issues at the Substance Abuse and Mental Health Services Administration in Rockland, Maryland.

The chair of the Expert Panel is Gregory Saathoff MD, who is listed as Executive Director of the Critical Incident Analysis Group (CIAG) at the University of Virginia. An entire article could be spent on Dr. Saathoff and the CIAG, which was founded in the wake of the Waco events. I found it kind of interesting that CIAG's Spring 2001 conference was entitled "Public Responsibility and Mass Destruction: Facing the Threat of Bioterrorism," and considered among the various terrorist possiblities "potential anthrax attack."

But probably most apposite for the point of this article is Dr. Saathoff's links to the FBI.

In 1996 he was appointed to a Commission charged with developing a methodology to enable the FBI to better access non-governmental expertise during times of crisis. In that regard, Dr. Saathoff has since 1996 served as the Conflict Resolution Specialist to the FBI’s Critical Incident Response Group. In this role, he consults with the Crisis Negotiation Unit and the National Center for the Analysis of Violent Crime.

I believe I have set out more than enough information here to challenge the supposed disinterest and lack of "predispositions" that supposedly animated this group of "behavioral experts." In fact, it's hard to believe that any group thus constituted could have or would have challenged the conclusions of the DOJ. Reading the Executive Summary, it's apparent how their case is built on a flimsy and prejudiced analysis, as they consistently refer to "circumstantial" evidence, as they construct a dire portrait of a man who is portrayed as "clever," who "cultivated" a benign presence, while masking his "criminal thoughts."

Since someone saw fit to show the entire report to the L.A. Times, perhaps the government would want to have this report examined by peer-review. It wouldn't be so hard to find individuals not linked to the government, but capable of the requisite security clearances. But then, the government hasn't taken the anthrax terrorism really seriously, leading many to conclude, rightly or wrongly, they have something to cover up. In any case, this latest "expert behavioral analysis" isn't going to convince anyone, as it is stacked with government-linked authorities, many of them to DoJ, DHS, or the Pentagon.

More on Obama's Pernicious Executive Order on Indefinite Detention

Marcy Wheeler's analysis of the latest Obama Executive Order, bringing back the military commissions, and setting up an extrajudicial apparatus within the Executive Branch for review of indefinite detention cases, hits the nail on the head. She takes apart the contentions of Ken Gude at the UK Guardian that the new EO represents "a clearly articulated standard for continued detention."

Here’s the actual language of Obama’s EO:

Sec. 2. Standard for Continued Detention. Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States. [Emphasis added]

The grammar of the EO is a clear admission on the government’s part that it is willing to indefinitely detain a human being not for what he has done, but because of the big swirling boogeymen it believes to lurk out there.

And it’s important that those who write about this make that distinction clear.

Amen.

In addition, Gude’s claim that “A detainee must be lawfully held under the laws of war, must have had that detention upheld by a federal court in a habeas proceeding,” doesn’t jibe with my reading. The EO states that “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention....”

As I read it, the latter is a pro forma statement, because it appears the Obama administration believes it can indefinitely hold someone despite a habeas decision. Moreover, they have been quite active in appealing successful habeas petitions, and is doing so with, as Andy Worthington puts it, "a political bent."

Since last January, when President Obama announced a moratorium on releasing any Yemenis from Guantánamo — in response to the hysteria that greeted the news that Umar Farouk Abdulmutallab, the failed Christmas 2009 plane bomber, had been recruited in Yemen — every successful habeas petition by a Yemeni (with the exception of Mohammed Hassan Odaini, a student whose clearly mistaken detention was picked up by the mainstream media) has been appealed.

The U.S. government is seeking to eviscerate habeas (as has already been done, really) not by formally taking away habeas petitions, but ignoring or contesting their outcome, and claiming a new entity, their Periodic Review Board, will determine who is actually released, not some (cough) court.

And who is on the Periodic Review Board?

“Periodic Review Board” means: a board composed of senior officials tasked with fulfilling the functions described in section 3 of this order, one appointed by each of the following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.

This puts the national IC community and military in charge of indefinite detention review. DOJ and State are mere rumps, at this point, of a militarist state seeking to put in place new institutions that will better represent their interests and rule.

Human Rights Watch, alone among human rights groups, while condemning the resumption of the military commissions, calls the latest position on indefinite detention "authorized but restricted," noting it "provides an additional layer of review not previously available."

While these new provisions are an improvement over the current system, which does not have such a review, the use by the US of indefinite detention without trial still fails to meet the most basic elements of due process under international law, Human Rights Watch said. Importantly however, the order only applies to detainees currently held at Guantanamo and not to anyone who might be captured in the future, a significant limitation given calls for sweeping detention authority by critics of the administration.

"Is added review an improvement? Yes. Does it make US detention policies lawful? No,"

said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. "Signing an executive order does not suddenly make it legal to lock people up and hold them forever without proving they have committed a crime."

It's strange, this search for something positive to say by HRW, as if the EO represented any kind of moral victory by providing a "significant limitation" of its abrogration of rights, and usurpation by the executive branch of unchecked review. It's quite clear that Obama is setting up a new version of the Combatant Status Review Boards set up during the Bush years, with bogus oversight by high defense department and intelligence officials, with fig leaf cover by State and DoJ.

Sabin Willett, an attorney at Bingham McCutchen in Boston, representing the Chinese Uighurs at Guantanamo since 2005, had an apt question for the leaders of this country, or perhaps really for those unconvinced the U.S. government is out of control here (H/T powwow at Emptywheel/FDL).

The thing I’ve never understood is, why at least not convert GTMO to a POW camp? A real one? With real, honorable treatment of the enemy, as required by law and the service field manuals? Why the cages, interrogations, etc etc etc? Why aren’t there gardens, orchestras, newsletters, canteens, jobs — or were the Nazis (who had all those things in camps in Texas and Alabama) less dangerous than Taliban privates?

America is Winston Smith. You remember how Orwell’s 1984 ends.

Powwow adds:

It is all the more important that the Supreme Court act to rein in the D.C. Circuit, because evidently no branch of our federal government is the least bit inclined to forcibly remind the President that he too has “a solemn duty to follow” the law of war in wartime, including “competent tribunal” review of the default POW status of any (actual belligerent) wartime detainees captured or held by the United States military during a Congressionally-authorized armed conflict.

For aspects of the latest EO has they pertain to issues of indefinite detention at Bagram and elsewhere in Afghanistan, see also this article by Marcy Wheeler.

Bushism Redux: Charge 'em if you can't kill 'em

More on the ACLU/CCR filing I reported on last month. It seems, as Glenn Greenwald put it in an article on Wednesday, Obama has adopted a Red Queen strategy: "Sentence first -- verdict afterward."

Marcy Wheeler caught what a very odd point in the AP story on the government's turn in strategy: "The Obama administration is considering filing the first criminal charges against radical cleric Anwar al-Awlaki in case the CIA fails to kill him and he’s is captured alive in Yemen." Wheeler added:

And the claim that they’re charging al-Awlaki just in case they happen to capture him alive rather than dead (opps!)? I’d suggest it probably has a lot more to do with the suit CCR and ACLU have taken against the government. I’m guessing that following shortly on formal charges, DOJ will tell the courts they can’t litigate the al-Awlaki suit because it pertains to an ongoing criminal investigation. Voila! No discovery in the lawsuit!!

For myself, I found a good deal of dry, wry humor in the ACLU/CCR comment that the changes "would be a step in the right direction." Damn. I'd hate to see what a step in the wrong direction would look like at this point.

Here's the press release from CCR and ACLU. Please support these organizations with some donations so they can do this necessary work for all of us.

CCR and ACLU Respond to Report that the Government Will Bring Charges Against Anwar Al-Aulaqi

EW YORK – The Obama administration is considering filing criminal charges against Anwar Al-Aulaqi, a U.S. citizen located in Yemen whom the U.S. government has already targeted for death without charge or trial, according to an AP story today.

In August, the American Civil Liberties Union and the Center for Constitutional Rights (CCR) filed a lawsuit challenging the government’s asserted authority to carry out “targeted killings” of U.S. citizens located far from any armed conflict zone. The groups were retained by Nasser Al-Aulaqi to bring the lawsuit in connection with the government’s decision to authorize the targeted killing of his son, Anwar Al-Aulaqi. The groups charge that if the government has evidence that a U.S. citizen is involved in terrorist activity, he should be charged with a crime and prosecuted.

The following can be attributed to the ACLU and CCR:

“Our organizations have long stated that if the government has evidence that Anwar Al-Aulaqi is involved in terrorist activity, it should present that evidence to a court – not authorize his execution without charge or trial. Now, months after the government announced its intent to kill Al-Aulaqi, it may finally bring charges against him. This would be a step in the right direction. The constitutional guarantee of due process relies on the critical distinction between allegations and evidence. If the reports that charges may be brought against Al-Aulaqi are true, the fact that it has taken the government this long – months after having announced his death sentence – suggests that, in this case, the government’s allegations were far ahead of its evidence.

“While bringing charges against Al-Aulaqi based on credible evidence would be a step in the right direction, it would not mean that he could now be targeted for killing without trial. It is well established that the government cannot use extrajudicial killing to punish people for past acts, but only to prevent grave and imminent threats. A criminal charge for past crimes does not provide a license to kill.

“We continue to believe that the courts must play a role in establishing legal standards for when the government can take the life of one of its own citizens without charge or trial. For that reason, we will continue with our litigation.”

For more information on the case, including fact sheets and legal papers, visit: ccrjustice.org/targetedkillings and www.aclu.org/targetedkillings.

House Judiciary Committee Releases Bybee Testimony on OLC Memos

In a surprise move, the House Judiciary Committee released a transcript (PDF) of a May 26, 2010 interview with Judge Jay Bybee, the former head of the Office of Legal Counsel (OLC) in the early Bush administration. Bybee, notoriously, co-wrote with John Yoo two August 2002 OLC memos authorizing the CIA's "enhanced interrogation" program. These memos took CIA and JPRA/DoD characterizations about the supposed safety of torture techniques, and along with various twisting and misrepresentations about legal precedent, gave the CIA torturers a green light.

Now Bybee says that all the torture the CIA did was not approved by the memos that bear his name. He also slipped and made various admissions that are still being analyzed by astute observers. For instance, as Marcy Wheeler noted in a posting today, Bybee essentially admits that the CIA experimented on sleep deprivation upon Abu Zubaydah. We know that, but to hear Bybee basically validate it is something. Of course, he tried to walk that back. See Marcy's story.

For a full description of the testimony, and greater context with which to understand the latest revelations, see Jason Leopold's article today at Truthout. For a list of related documents also released by the Judiciary committee, click here. -- While I haven't time to fully write up my own reaction to the testimony, it does seem as if Bybee is trying to distance himself from the CIA and John Yoo, while at the same time justifying his own part in the creation of the memos. It's a classic display of CYA, and it's fun to see what parts of the transcript Bybee wanted to change (see the story on sleep deprivation, for instance, linked above, and here's another one from Marcy/EW).

Posted below is a press release from the National Religious Campaign Against Torture (NRCAT) on the Bybee revelations.

Torture Lawyer Jay Bybee Confirms CIA Use of Illegal Interrogation Techniques

Washington, D.C.—The National Religious Campaign Against Torture (NRCAT), a campaign of over 285 religious organizations working together to abolish U.S.-sponsored torture, responded today to the admission made by Judge Jay Bybee, who formerly headed the Office of Legal Counsel (OLC), that the CIA used torture techniques beyond even those approved by the OLC.

Types of torture approved by the OLC under then Assistant Attorney General Bybee include waterboarding, walling, stress positions, and sleep deprivation. During his testimony on May 26 before the House Judiciary Committee, Judge Bybee confirmed that the CIA went beyond even those approved types of torture to force detainees to defecate on themselves, to hold detainees in extended isolation, to hang detainees from ceiling hooks, and to administer daily beatings of detainees.

Acting U.S. Attorney John Durham has been tasked by Attorney General Holder with investigating those interrogations that went beyond the guidelines propagated by the OLC. Judge Bybee’s admission confirms that CIA interrogators used types of torture that were not allowed by the OLC guidelines.

“The fact that the CIA used forms of torture not allowed by even the flawed OLC memos demonstrates the need for U.S. Attorney Durham to thoroughly investigate the CIA’s use of torture,” said NRCAT Executive Director, Rev. Richard Killmer.

“It is very important to note that the use of torture was not the result of a few bad apples, whether at the CIA or at the OLC. Rather, the use of torture was condoned at the highest levels of the Bush White House. President Bush is unrepentant about having authorized the use of torture, recently telling a crowd in Grand Rapids that he would ‘do it again’ about the waterboarding of Khalid Sheikh Mohammed. Also Judge Bybee stated that he was concerned about close communication between John Yoo and the White House. If Attorney General Holder does not follow his investigation to the highest levels of the U.S. government then the result will be a tragic scapegoating instead of true justice.”

The National Religious Campaign Against Torture (NRCAT) is a growing membership organization committed to ending U.S.-sponsored torture, and cruel, inhuman and degrading treatment. Since its formation in January 2006, more than 285 religious groups have joined NRCAT, including representatives from the Catholic, evangelical Christian, mainline Protestant, Unitarian Universalist, Quaker, Orthodox Christian, Jewish, Muslim, Hindu, Baha’i, Buddhist, and Sikh communities. Members include national denominations and faith groups, regional organizations and local congregations.

Omar Khadr Denounces Military Commissions as a Sham

Marcy Wheeler has provided all of us a service and transcribed the written statement of former child soldier Omar Khadr, read aloud in the military commission "court" on July 12, describing why he will not participate in the proceedings surrounding his so-called trial. Omar Khadr fired his American attorneys recently, something he has done before. In his statement, he describes his reasons for doing so. Khadr is the first case to be adjudicated in President Obama's new, supposedly improved military commissions. The latter remain a confused jumble of procedures, and allow wide latitude for the introduction of torture-tainted evidence via hearsay into trial proceedings.

Your honor, I’m boycotting this military commission because:

* Firstly, the unfairness and unjustice of it. I say this because not one of the lawyers I’ve had, or human right organization or any person say that the commission is fair, or looking for justice, but on the contrary they say it is unfair and unjust and that it has been constructed solely to convict detainees and not to find the truth (so how can I ask for justice from a process that does not have it or offer it?) [new color ink--apparently added later] and to accomplish political and public goal and what I mean is when I was offered a plea bargain it was up to 30 years which I was going to spend only 5 years so I asked why the 30 years? I was told it make the US government look good in the public eyes and other political causes.

* Secondly, the unfairness of the rules that will make a person so depressed that he will admit to alligations or take a plea offer that will satisfy the US government and get him the least sentence possible and ligitimize the show process. Therefore I will not willingly let the US gov use me to fullfil its goal. I have been used to many times when I was a child and that’s why I’m here taking blame and paying for thing I didn’t have a choice in doing but was told to do by elders.

* Lastly I will not take any plea offer or [several words redacted] because it will give excuse for the gov for torturing and abusing me when I was a child.

Here is the statement itself, in an image cleared by the military for public release, credit to Carol Rosenberg/The Miami Herald


More from Carol Rosenberg's article:

Alleged ex-teen terrorist Omar Khadr on Monday denounced his coming war-crimes trial as a sham, saying he'd been offered a secret plea deal for release after five years served at Guantánamo.

Instead, the Canadian fired all his attorneys and said he would offer no defense....

The Canadian's family attorney, Dennis Edney, later said that the offer, made about a month ago, was for release from detention here in 2015 -- and continuation of the sentence in his native Canada.

``Mr. Khadr could not admit to guilt to something he did not do,'' Edney said....

Now-fired defense attorneys Barry Coburn and Kobie Flowers sought to show that Khadr as a 15-year-old old captive was coerced into confessing from the start when his first interrogator described scaring him with an American prison gang-rape scenario.

The military commissions are a farce, except for those involved, it is an injustice, and at times, for those abused and tortured, it is re-traumatizing, as it was for Omar Khadr. The Toronto Globe and Mail reported recently that Khadr's attorneys are very worried about their former client:

Omar has lost all hope of a fair trial in Guantanamo, he can see that the trial is rigged,” said Nate Whitling, one of his Canadian lawyers, explaining Mr. Khadr’s decision to dismiss his legal team.

“We tried desperately to talk him out of it,” Mr. Whitling said, adding the Mr. Khadr, 23, was so upset by the pre-trial appearances of interrogators who tortured and abused him after he was captured in 2002 that he chose to cease participating in the tribunals.

“Guantanamo Bay is like a despair factory, it manufactures hopelessness.”— Barry Coburn, American lawyer dismissed by Omar Khadr

I'd add that Omar's response to the appearance of this tormentors in court is indicative of someone with a post-traumatic syndrome. President Obama could order the release of Khadr. The Canadian government could act more strenuously for the return of the former child prisoner. But neither acts for humanitarian reasons, or on behalf of justice. In Canada, however, a federal court recently ruled that the Harper government had failed to intervene appropriately on Mr. Khadr's behalf.

Military judge, Army Col. Patrick Parrish, has ruled that Khadr's military attorney, Pentagon appointed counsel, Army Lt. Col. Jon Jackson, is to represent Khadr, whether the latter approves or not. According to the Miami Herald story, the judge said, "I want to make sure the proceedings are fair to Mr. Khadr -- whether he boycotts or not."

These kangaroo court hearings are also, in part, the legacy of a complicit Congress, led by a Democratic Party majority, which last year re-approved the Bush-era Military Commissions Act, offering up a new, supposedly improved version of the military commissions court. Last March, no less a person than Eugene R. Fidell, president of the National Institute of Military Justice was quoted in the Washington Post, in a prescient critique foreshadowing Omar Khadr's own, more personal, experientially-derived denunciation:

"Military commissions are antithetical to the administration of justice," Fidell said. "They're slow, they're opaque, the rules are currently unknown."

Two More Essential Articles on OPR/OLC Torture Scandal

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

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

What If They DID Use Mock Burial with Abu Zubaydah? 

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

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

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

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

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

More Investigations for the Torture Lawyers

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

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

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

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

Protest Letter to Obama on Failure to Release Torture Evidence

The Bill of Rights Defense Committee, and a host of other organizations, including Alliance of Justice, Coalition for an Ethical Psychology, After Downing Street, Veterans for Peace, American Muslim Voice, and many others, have sent a letter (PDF) to President Obama asking him to withdraw his opposition to the release of photos of detainee abuse. The letter continues (italics in original):

More broadly, we write to remind you of the context in which this issue arises, explain why transparency and robust accountability are a strategic national security imperative, and to expose the self-interest of voices counseling against accountability.

You recently received a letter from seven former CIA directors “urg[ing] you to exercise your authority to reverse Attorney General Holder's August 24 decision to re-open the criminal investigation of CIA interrogations....” We are grateful that you dismissed their self-serving and internally inconsistent diatribe, and instead affirmed “that nobody’s above the law.”

On the other hand, your actions in other arenas indicate a troubling willingness to sweep torture under the rug, rather than openly address our nation’s regrettable recent history....

We claim, on the one hand, that our military deployments advance human rights, reflecting our historical legacy as a champion of those issues. But this claim will continue to lack contemporary credibility until robust accountability — and prosecution — dispels the cloud of torture and abuse that unfortunately lingers over U.S. foreign policy.

Beyond the impact such prosecution may have on the intelligence community and our foreign allies and supporters, we also speak on behalf of millions of Americans from all walks of life, demographics, professions, backgrounds, and communities who are appropriately appalled by the CIA’s abuses....

We recognize your understandable desire to look forward rather than back. The ongoing secrecy surrounding evidence of torture, however, amounts to suppression of evidence. You yourself have affirmed that “nobody’s above the law,” even while acting to keep the dark past from being brought to light by pursuing a policy of secrecy.

While Congress has authorized your administration to disregard court orders to disclose photos documenting abuse, the Department of Defense retains—and we request that you exercise — the authority to declassify and release the photos. Torture apologists have concocted the self-serving ruse that releasing the photos would undermine the safety of U.S. troops deployed abroad, ignoring the sad reality that any potential harm to our troops inheres in the criminal conduct depicted in the photos, not their potential disclosure....

Worse yet, the secrecy your administration maintains over torture evidence — much of which appears to have been destroyed by the CIA in an effort to cover its criminal trail — appears to reflect the worst conceivable reason not to enforce the law: deference to a political calculus. The possibility that robust accountability may prove contentious, and potentially interfere with the actualization of your administration’s agenda on unrelated policy matters, is an illegitimate basis on which to resign enforcing the law.

Moreover, failing to investigate those who conceived, planned, and orchestrated violations of international law does not reflect political neutrality. In fact, the current investigation, limited to some junior agents, reflects pre-judgment in favor of alleged torturers. Your administration’s decision to hide torture evidence unfortunately compounds past crimes and further erodes the rule of law.

Please see the link to read the whole letter, which is amply documented with footnotes. Regarding the letter's claim in the penultimate paragraph above, re the CIA's destruction of evidence, see the ACLU's latest release of a "Vaughn Index" of the denied documents in the investigation of the destruction of the CIA torture videotapes, and some wonderful examinations by Emptywheel/Marcy Wheeler (here and here and here) about what that Index might reveal anyway about matters relating to the CIA's crimes.

Marcy Wheeler & David Frakt on Torture & the 9/11 Prosecutions

Marcy Wheeler, aka emptywheel, has an important post up today. She has solicited the opinions of Lt. Col. David Frakt on the issues behind the Attorney General Eric Holder's decision to try Khalid Shiekh Mohammed and four other 9/11 defendants in a New York federal court, and other prisoners in the newly reconstituted military commissions. Frakt was the military attorney for teenaged Guanatanamo prisoner Mohammed Jawad.

Marcy, and key commenter-contributor at her blog, Mary, and others, had been wondering if the decision to move KSM and the others to federal courts wasn't in part due to the fact they could charge the 9/11 prisoners with "material support to terrorism" charges, making it easier to convict them, as such charges have been "used to give wide leeway to prosecutors to charge those for whom intent to commit terrorism may not be easy to prove."

There's much to read and ponder at Marcy's post. I found the discussion of the bogus "laws of war" charges actually brought in the military commissions cases to be very interesting. But in this post of mine today, I'm going to pull from Marcy's blog a portion of Lt. Col. Frakt's comments, which Marcy found particularly important, concerning how the issue of torture was handled by the judge in the military commissions case concerning Mohammed Jawad:

I had another couple of thoughts about why the 9/11 case was transferred to federal court, aside from purely political considerations. The Judge in the case, Colonel Stephen Henley, had made a couple of rulings in the Jawad case (my case) which made the government very nervous. First, he ruled in response to a motion to dismiss that I filed on the basis of torture that he “beyond peradventure” had the power to dismiss all charges on the basis of pretrial abuse of the detainee. Although he declined to dismiss the charges against Jawad, the fact that he would even entertain such a thought was very frightening for the prosecution, since they knew that other detainees had been tortured and abused far worse that Jawad, especially the high value detainees. Judge Henley also indicated that he was declining to dismiss because there were other remedies available, such as giving extra sentencing credit against any ultimately adjudged sentence. Assuming that KSM and his brethren were to get the death penalty, the only remedy for their prior abuse would be to commute the death penalty, the government’s worse nightmare. Also, in response to multiple motions to suppress statements that I filed, he had ruled not only that Jawad’s initial confession was obtained by torture, but that all subsequent confessions were presumptively tainted by the earlier tortured confession. He held that the burden was on the prosecution to prove that subsequently obtained statements were no longer tainted by the earlier torture or coercion. Judge Henley applied the law correctly in each of these rulings, applying well-settled principles of due process from U.S. Supreme Court cases. These rulings provide an opportunity for the defense to put the U.S.’ treatment of these detainees on trial, potentially for months, before ever getting to the merits of the case. And in order for the defense to make comprehensive motions, they would have to be made privy to the full scope of the abuses that had been meted out by the U.S. on their clients and should be given the opportunity to develop such evidence in pre-trial evidentiary hearings, as I did in Mohammed Jawad’s case, including allowing the defendants to testify about the abuses they experienced. Those who claim that this type of sideshow can be avoided in federal court simply don’t understand criminal procedure. The real question will be whether the 9/11 defendants authorize their counsel to make such motions or whether they will continue to seek martyrdom and forgo the opportunity to fully litigate the torture issues. [my emphasis (i.e., emphasis by Marcy Wheeler)]

I would be curious, given Lt. Col. Frakt's suggestion that Judge Henley has provided that "pretrial abuse" is actionable and worthy of remedy, why this was not ruled to be the case in the Jose Padilla proceedings.

US District Court Judge Marcia Cooke, of the U.S. District Court, Southern District, Miami, in an ruling in April 2007 (made without a hearing) rejected Padilla's attorneys' motion for dismissal of Padilla's case due to "outrageous government conduct". That conduct included torture through isolation, profound sensory deprivation, sleep deprivation, use of stress positions, use of drugs, and other indignities. Padilla had been held since June 2002 at the Naval Consoldidated Brig in Charleston, South Carolina as an "enemy combatant". Original charges of constructing a "dirty bomb" had been dropped.

In Judge Cooke's ruling, she accepted "for the sake of this Order" Padilla's claims of mistreatment to be true, but the abuse supposedly did not amount to sufficient outrageous conduct to throw the case out of court. Why? Because the government claimed it would not use any evidence obtained from interrogations while Padilla was in the brig, i.e., from the time when he was tortured. Therefore, legally, Padilla supposedly has no "remedy" against the government.

It will be interesting to see how events unfold in the KSM et al. trial. I hope Lt. Col. Frakt will turn out to be correct, regarding his assumption the government has a lot to risk re bringing out in court the torture issue.

Meanwhile, I thank Marcy/Emptywheel for her excellent reporting, and Lt. Col. Frakt for his standing up for what is right, and fighting this all-important good fight. (If you haven't yet, do spend some time reading Frakt's closing arguments in the Jawad case. Many consider them among the most powerful words yet spoken on the injustice of the Bush/Cheney/Rumsfeld-initiated military commissions system, a system that continues in only slightly modified form in the Obama years.)

DoJ Dithers on OPR Report - Tell Attorney General Holder to Investigate Torture

Alliance for Justice announces the release of its new documentary, Tortured Law, which examines the role lawyers played in authorizing torture. The film is being used to spark debate across the country, and calls on Attorney General Eric Holder to uphold the Constitution and the law by releasing the Justice Department's report on the "torture memos" and authorizing a full investigation of those who ordered, designed, and justified torture.

H/T for this video to Marcy Wheeler, who has an interesting post up on the latest delay in the Office of Professional Responsibility report on the OLC torture memos of Yoo, Bybee and Bradbury. She links the delay to the review of CIA attorney John Rizzo, and/or the CIA generally.

I'd say she is absolutely right. The reason is, I believe, in part due to the fact that the CIA's own Office of Technical Services (OTS) wrote an extensive report on the SERE-derived torture techniques for use by the Office of Legal Counsel in their construction of the first of the torture memos. The OTS report to OLC lied about the medical and psychological consequences of the proposed techniques. We know they lied because researchers in the same directorate of the CIA had themselves been studying the severe effects of these techniques going back at least to the 1990s.

The CIA must be working overtime to redact almost every culpable portion of the OPR report that links the OLC memos to the initial OTS/CIA report vetting the "enhanced interrogation techniques." If the latter comes out -- and the OTS paper is still classified, and according to my sources, until recently ACLU was not even aware of its existence -- then we will have a very clear picture of the culpability of the CIA in the construction of the torture program, just one short step away from the Oval Office orders, which Dick Cheney and Bush have already indicated they gave.

If the American public, and society in general, cannot totally dismantle this torture apparatus, bring its actors to the bar of justice, and ensure that this kind of serious criminality is stopped and prosecuted, then I fear for the future of this country... because it won't be very long before whatever the United States was, it will cease to exist, except perhaps in name only. It will be something too awful to contemplate, and a long dark chapter in history won't be ending, but just beginning.

New "State Secrets" Policy? More Lipstick on the National Security Pig

The New York Times reports:

The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

But the Obama administration believes it's enough now that any claim of "state secrets" privilege by the executive branch be reviewed now by the Attorney General. The ACLU notes with some derision that "on paper" there is some purported progress, while Marcy Wheeler at FDL reports that Center for Constitutional Rights is calling the proposed policy "smoke and mirrors." Ben Wizner at the ACLU had more to say (emphasis added):

In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities 'state secrets,' and thus avoid any judicial oversight or accountability. It is critical that the courts play a meaningful role in deciding whether victims of human rights abuse will have an opportunity to seek justice. Real reform of the state secrets privilege must affirm the power of the courts to reject false claims of 'national security.

Writing also at FDL, bmaz sees the timing of the "new" policy as related to government attempts to bury the evidence of government misdeeds in the wiretapping al-Haramain case:

The al-Haramain case is a perfect storm of problems for the government, there is warrantless wiretapping, the surveillance invaded an attorney-client relationship, there is known proof in the form of the sealed surveillance log under the protective custody of the court, and at least some of the surveillance is known to have occurred during the period after the infamous "John Ashcroft hospital scene"....

Tack in the distinct possibility that the government made material misrepresentations about their data mining and warrantless surveillance to the FISA Court and that illegally information thusly obtained inappropriately made its way into the affidavit for the search warrant executed on the al-Haramain Foundation in Oregon, and you see the veritable cornucopia of problems the government could be so determined to stop inquiry into in the al-Haramain litigation before Judge Walker....

There is a lot the government has to hide in al-Haramain, and they are desperate to do just that. It would be a perfect time to whip out a ruse in the form of a "new state secrets policy". Even if there is nothing at all new about it.

The spanking new proposed policy only raised spitting disgust from civil liberties legal blogger Glenn Greenwald:

...the so-called "new state secrets policy" which the Obama DOJ is set to unveil is such a self-evident farce -- such an obvious replica of all the abuses that characterized the Bush/Cheney use of that privilege which Obama himself has spent the last eight months embracing -- that I couldn't even bring myself to write about it. It would not have altered a single one of the controversial uses and is a complete non-sequitur to the objections raised to its abuses (including, once upon a time, by Obama himself).

For those who haven't gotten the picture yet, let me draw it as simply as possible: when it come to defending U.S. military and national security interests, there's not a cent's worth of difference between the Bush/Cheney and Obama/Biden administrations. Those waiting for the confirmation of Dawn Johnson to change things might as well be waiting for the Second Coming (or the Messiah, if you're Jewish).

And as an aside -- and switching topic somewhat -- those waiting for the Congressional bill to slap down Acorn as somehow being used in some sort of progressive jujitsu to bring down the entire military-industrial complex (see the Greenwald link above), let's not waste our time with such utopian fantasies. Some poor naive activists might believe it, and only demoralization results from pursuing such pipe dreams. The MIC will not be brought down by a trick.

Meanwhile, for readers pursuing other items of interest, this appears promising:

In an interview with former CIA officer Phillip Giraldi, FBI translator turned whistleblower Sibel Edmonds named Douglas Feith, Paul Wolfowitz, and Richard Perle as having been wiretapped and recorded discussing plans with the Turkish ambassador in the Summer of 2001 to invade Iraq and occupy the Kurdish region bordering Turkey.