Report from Guantanamo: Black Clouds of Coercion

Check out the latest report from Guantanamo Bay, where evidence tainted by torture is surfacing in military commission proceedings.

Stephen Colbert Has the Tools to End Torture

The Torture Memo drafted by the Justice Department in August 2002 ends torture! How? As Stephen Colbert explains, “The torture memo helps end torture by helping people believe they’ve never done it.”

The Jack Bauer Contagion

The fictional “24” character Jack Bauer has not only been heralded a hero of counterterrorism within the world of TV, but he has also been the basis for U.S. interrogation policy. Diane Beaver, John Yoo, Michael Chertoff and Antonin Scalia have all looked to Bauer for advice. Yet, he’s fictional.

To find out more about the devastating effects of Jack Bauer's influence, check out HRF's Primetime Torture project.

Missing at Guantanamo: Signs of a Fair Trial

This week marked the beginning of the trial of Salim Ahmed Hamdan, the first Guantánamo Bay prisoner to face trial by military commission. These first few days have highlighted the deficiencies in the process afforded these men.

High amongst these is Judge Allred’s decision that the Fifth Amendment right against self-incrimination does not apply to Hamdan and that some statements obtained through coercion may be admitted as evidence. By allowing the prosecution to rely on self-incriminating statements obtained far from the battlefield without Miranda warnings and through coercion, Judge Allred has violated domestic and international fair trial standards. In the federal criminal justice system, a defendant must be warned that statements may be used against him before his interrogation begins, and corroborating evidence is required at trial to support such statements. Contrary to this norm, the LA Times reported today that much of the government’s case against Hamdan is based on self-incriminating statements alone.

The lack of crucial safeguards typically afforded defendants in the criminal justice system is only the latest proof that the military commission process is deeply flawed and that it cannot result in any just outcome.

More Bush Admin Memos Offer Up a Defense for Torturers

The ACLU today released three documents -- in essence, three additional "Torture Memos" from 2002-04 -- that the Bush administration has refused to disclose before now. The ACLU obtained the documents through its continuing Freedom of Information Act (FOIA) litigation against the administration.

To say the Bush administration has finally now "disclosed" these memos actually is a bit of an overstatement. Government censors have been busy: Perhaps 95% or more of the two multi-page documents in the set -- an 18-page August 1, 2002, Justice Department Office of Legal Counsel (OLC) memo to the CIA, and a 3-page January 23, 2003, CIA memo to OLC -- are entirely redacted.

But even with all that's been cut, there is still enough here that is troubling. As early media reports have pointed out -- such as this one from the Associated Press -- the August 2002 OLC memo purports to give CIA interrogators a "good faith" defense to criminal prosecution for torture so long as they do not believe their cruel techniques would cause "prolonged mental harm." Perhaps even more ominous is the January 2003 CIA memo, which suggests that CIA agents anywhere in the world have blanket permission to use both standard and "enhanced" interrogation techniques -- collectively labeled in the memo as the "Permissible Interrogation Techniques."

More ominous still? In stating that these "Permissible Interrogation Techniques" are all that CIA agents may use "[u]nless otherwise approved" by CIA headquarters, the memo suggests that at the CIA there has been some category of interrogation techniques even more enhanced than the known "enhanced" techniques -- such as waterboarding -- that themselves are clearly torture. What were these people doing?

Ignoring Evidence, AG Mukasey Affirms Bush Admin's Decision to Send Detainee to Syria

In testimony before the House Judiciary Committee today, Attorney General Michael Mukasey commented on the case of Maher Arar, who was detained in the United States and subsequently removed to Syria where he was tortured and ill-treated.

Mukasey was asked whether the United States received sufficient assurances from Syria that Mr. Arar would not be subjected to torture, and whether those assurances warranted sending Mr. Arar to Syria rather than to Canada, where Mr. Arar is also a citizen.

Mukasey answered: “Sending him to Canada could have posed a danger to this country. Sending him to Syria was safer, assuming we got the assurances, which we did.”

What risk? A September 2006 report, produced following the Canadian government’s inquiry into the Arar matter, concluded that there was no evidence that Mr. Arar committed any offense or constituted a security risk, and that the information which led to his detention and deportation was inaccurate and misleading.

Even if Mr. Arar had posed a risk, the United States should not have relied on Syria’s “diplomatic assurances.” These promises are unreliable and unenforceable and circumvent the non-refoulement obligations of the sending country. The Canadian Commission of Inquiry, which studied the Arar matter, concluded that Mr. Arar’s case clearly exemplifies the problem with relying on diplomatic assurances from a state that routinely practices torture and abuse.

Injustices such as the Arar incident have significantly undermined the United States’ moral authority. To restore its reputation as a world leader on human rights, the United States must confront such incidents publicly, acknowledge its past mistakes, provide effective remedies to victims of abuse, and take the necessary corrective measures to uphold the absolute ban on torture.

Coerced Evidence Rejected at Guantanamo Trial; but the Process Is Still a Stain on the American Justice System

As the Los Angeles Times reported (07/22/08):

The military judge overseeing the first war crimes trial against a terrorism suspect at Guantanamo Bay agreed Monday to bar some evidence against Osama bin Laden's former driver because it was obtained in "highly coercive environments and conditions."

On the trial's opening day, Navy Capt. Keith J. Allred denied defense appeals to exclude other statements Salim Ahmed Hamdan made during interrogation by U.S. agents in Afghanistan as well as during his more than six years' imprisonment at Guantanamo Bay, Cuba. The judge said he would withhold judgment on a May 2003 interrogation until the defense had time to review 600 pages of detention records, which the government did not turn over until Sunday -- the night before trial.

Judge Allred's efforts to keep some coerced evidence out of the trials at Guantanamo are notable. But this does not change the fact that the system in place to try terror suspects held by the U.S. retains few of the fundamental protections that are the cornerstone of the American justice system - and which have long been an example to the rest of the world.

In a recent report, Tortured Justice, Human Rights First showed how the introduction of coerced evidence, obtained through the use of official cruelty, into military commission trials at Guantanamo Bay is rapidly contaminating the justice system and jeopardizing the prospects for the successful prosecution of terrorists.

In the report, HRF recommends that in order to stop the pollution of America’s justice system:

• The U.S. government should try terrorist suspects by court-martial or in civilian criminal courts where coerced confessions are inadmissible, the introduction of hearsay evidence is restricted to protect reliability and the rules governing the disclosure and introduction of classified evidence are clear.

• The U.S. government should prohibit the admission of statements extracted through torture or coercion during detention hearings and criminal trials for terrorist suspects.

• Congress should require the U.S. government to provide detainees with counsel at detention hearings, and restore habeas corpus rights to detainees designated as enemy combatants

• Congress should impose additional discovery requirements on government prosecutors in terrorism cases, subject to the same procedures employed in U.S. courts for evaluating potentially classified evidence.

'... the most dramatic, sustained and radical challenge to the rule of law in American history'

Today in his New York Times column, Bob Herbert reviews Jane Mayer’s The Dark Side, highlighting her emphasis on David Addington’s role as lead architect in the Administration’s legal strategy for the war on terror:

The U.S. shamed itself on George W. Bush’s and Dick Cheney’s watch, and David Addington and others like him were willing to manipulate the law like Silly Putty to give them the legal cover they desired. Ms. Mayer noted that Arthur Schlesinger Jr., the late historian, believed that “the Bush administration’s extralegal counterterrorism program presented the most dramatic, sustained and radical challenge to the rule of law in American history.” After reflecting on major breakdowns of law that occurred in prior administrations, including the Watergate disaster, Mr. Schlesinger told Ms. Mayer: “No position taken has done more damage to the American reputation in the world — ever.”

Mr. Herbert points out how much of this occurred outside of the awareness of the public, and calls for the whole truth to come out, and for as many of the wrongs as possible to be rectified. Ms. Mayer’s book lays out clearly the story of what has happened in the United States since September 11.

Even as she puts together a coherent narrative of what took place (and perpetrated by whom) behind the doors of the White House, every page renews this reader’s sense of outrage and incredulousness. In other words, I can’t put it down.

Mukasey Distorts Record to Argue for Restrictions on Habeas Corpus Rights in Terrorism Cases

Human Rights First Senior Associate Deborah Colson dissects some of Attorney General Michael Mukasey's arguments in a speech he gave today calling on Congress to pass legislation governing federal courts’ consideration of habeas petitions by Guantanamo detainees.

[Mukasey] suggested that the rules for handling classified information must be modified because federal courts have already been involved in some national security leaks. This is what he said:

"In the terrorism case I mentioned a minute ago, the government was required by law to turn over to the defense a list of unindicted co-conspirators – a list that included Osama bin Laden. This was in 1994, long before most Americans had ever heard of Osama bin Laden. As we learned later, that list found its way into bin Laden’s hands in Khartoum, tipping him off to the fact that the United States Government was aware not only of him but also of the identity of many of his co-conspirators. We simply cannot afford to reveal to terrorists all that we know about them and how we acquired that information. We need to protect our national security secrets, and we can do so in a way that is fair to both the Government and detainees alike."

But In Pursuit of Justice, a recent Human Rights First report studies the terrorism case Mukasey mentioned (the trial of Sheikh Omar Abdel Rahman) and finds that the government was at fault by failing to invoke lawful means for protecting the unindicted coconspirator list. The report concludes:

Had the government sought a court order restricting dissemination of the list, perhaps it would not have been disseminated to Bin Laden. In fact, in later terrorism cases, such as the Embassy Bombings case, protective orders have been employed to restrict the dissemination of sensitive materials.

In Pursuit of Justice recognizes that the Classified Information Procedures Act (CIPA), which governs the protection of national security information in federal courts, is not foolproof. But, based on public record, the report finds no important security breaches in any terrorism case in which CIPA has been invoked.

Ashcroft to Testify on Detainee Treatment

You can watch it on C-Span here.

The former Attorney General reportedly expressed some misgivings about the Bush Administration's use of torture, or at least concern over where the conversations about techniques were taking place. "Why are we talking about this in the White House? History will not judge this kindly," he reportedly said.

Update: AG Mukasey’s confused -- and confusing -- reasoning

At today’s Judiciary Committee hearing, Attorney General Mukasey admits that the DoJ’s Office of Legal Counsel produced poorly written legal memoranda on torture that fell far below OLC standards of legal analysis. He blames the production of these memos on a "cycle of aggressiveness and timidity" within the Bush administration.

So, a charged political climate led to sub-par legal analysis. Sounds like something we’d like to have less of in the future, right?

Only, for Mr. Mukasey, these facts argue for protecting lawyers’ ability to write these kinds of memos without fear of consequences.

Confused? You should be.

AG Mukasey Testimony

You can watch it live online here: http://www.cspan.org/watch/cs_cspan3_rm.asp?Cat=TV&Code=CS3

Senator Whitehouse is questioning him now about torture and the politicization of the DoJ.

Former White House Press Secretary Changes His Tune on Torture

What a difference a few years makes.


Scott McClellan Then:

Q Is the President comfortable with Gonzales' role in developing torture memos, approving torture policies?

MR. McCLELLAN: Approving torture policies?

Q Over the last couple of years.

MR. McCLELLAN: I don't know what you mean by torture policies -- because the President -- the policy of the administration has been very clear from the beginning that we adhere to our laws and our treaty obligations. That's the policy that the President set and that's the policy he expects to be followed. And he made it very clear, previously, as well, that we do not condone torture and he would never authorize the use of torture. So I want to correct that characterization of any misperception that might be there.

Scott McClellan Now:

" . . . . .almost to a full extent I had to rely on other people within the White House to provide me with the information I needed for [information on detainee treatment]. I did not sit there and participate in the policy making process for detainees. We’re only now learning the full truth of who was involved in that and what exactly occurred.

"But when I went out and said, 'we do not torture, that we adhere to our international treaties' and so forth, I was relying on what information was being given to me. Now, looking back on that, I hold a very different view when I know today that were engaged in waterboarding and some other harsh interrogation methods and I would have never made those comments from the podium had I known exactly what was happening in some of those settings.

"Whether or not it was illegal is a matter for other people to address, but I could not say honestly today that this administration does not believe in torture, does not engage in torture. Now, people within the White House continue to believe...that it’s not tantamount to torture. I just hold a different view today on that subject."

Attorney General Mukasey to Testify

The Attorney General will be testifying before the Senate Judiciary Committee tomorrow. Here's a recap of his less than illuminating last appearance before Congress.

Off-Key

Singer David Gray is not pleased that his music has been used to abuse detainees in American custody. From the BBC:

Gray's warning on 'torture' music

Singer David Gray has warned that US interrogators playing loud music as a form of "torture" - including his own song Babylon - was no laughing matter.

"Only the novelty aspect of this story gets it noticed... Guantanamo greatest hits," he said.

"What we're talking about here is people in a darkened room, physically inhibited by handcuffs, bags over their heads and music blaring at them."

His track Babylon is reportedly a favourite of US interrogators in Iraq.

Repeatedly playing loud music to suspected terrorist detainees is also a standard interrogation technique in Guantanamo and other US bases.

"That is torture," the singer-songwriter told BBC Radio 4's The World Tonight.

"That is nothing but torture.

"It doesn't matter what the music is - it could be Tchaikovsky's finest or it could be Barney the Dinosaur.

"It really doesn't matter, it's going to drive you completely nuts."

He said such torture formed part of a US "retaliation to a few terrorist acts".

"No-one wants to even think about it or discuss the fact that we've gone above and beyond all legal process and we're torturing people," he added.

Babylon - from his White Ladder album - was Gray's breakthrough single, reaching number five in the UK in 2000.

White Ladder reached number one in the UK and number 35 in the US.

Christopher Hitchens Thinks It's Torture

Apparently being waterboarded is pretty darn unpleasant. And yes, there's video.

Made in China

The New York Times has the story on our latest Chinese import: torture technique from the Korean War era designed to produce false confessions. Unlike in the cases of lead painted toys and toxic toothpaste, it looks like U.S. policies and practices are to blame for this import getting into American hands.

China Inspired Interrogations at Guantánamo

By SCOTT SHANE

WASHINGTON — The military trainers who came to Guantánamo Bay in December 2002 based an entire interrogation class on a chart showing the effects of “coercive management techniques” for possible use on prisoners, including “sleep deprivation,” “prolonged constraint,” and “exposure.”

What the trainers did not say, and may not have known, was that their chart had been copied verbatim from a 1957 Air Force study of Chinese Communist techniques used during the Korean War to obtain confessions, many of them false, from American prisoners.

The recycled chart is the latest and most vivid evidence of the way Communist interrogation methods that the United States long described as torture became the basis for interrogations both by the military at the base at Guantánamo Bay, Cuba, and by the Central Intelligence Agency.

Some methods were used against a small number of prisoners at Guantánamo before 2005, when Congress banned the use of coercion by the military. The C.I.A. is still authorized by President Bush to use a number of secret “alternative” interrogation methods.

Several Guantánamo documents, including the chart outlining coercive methods, were made public at a Senate Armed Services Committee hearing June 17 that examined how such tactics came to be employed.

But committee investigators were not aware of the chart’s source in the half-century-old journal article, a connection pointed out to The New York Times by an independent expert on interrogation who spoke on condition of anonymity.

The 1957 article from which the chart was copied was entitled “Communist Attempts to Elicit False Confessions From Air Force Prisoners of War” and written by Alfred D. Biderman, a sociologist then working for the Air Force, who died in 2003. Mr. Biderman had interviewed American prisoners returning from North Korea, some of whom had been filmed by their Chinese interrogators confessing to germ warfare and other atrocities.

Those orchestrated confessions led to allegations that the American prisoners had been “brainwashed,” and provoked the military to revamp its training to give some military personnel a taste of the enemies’ harsh methods to inoculate them against quick capitulation if captured.

In 2002, the training program, known as SERE, for Survival, Evasion, Resistance, Escape, became a source of interrogation methods both for the C.I.A. and the military. In what critics describe as a remarkable case of historical amnesia, officials who drew on the SERE program appear to have been unaware that it had been created as a result of concern about false confessions by American prisoners.

Senator Carl Levin, Democrat of Michigan and chairman of the Senate Armed Services Committee, said after reviewing the 1957 article that “every American would be shocked” by the origin of the training document.

“What makes this document doubly stunning is that these were techniques to get false confessions,” Mr. Levin said. “People say we need intelligence, and we do. But we don’t need false intelligence.”

A Defense Department spokesman, Lt. Col Patrick Ryder, said he could not comment on the Guantánamo training chart. “I can’t speculate on previous decisions that may have been made prior to current D.O.D. policy on interrogations,” Colonel Ryder said. “I can tell you that current D.O.D. policy is clear — we treat all detainees humanely.”

Mr. Biderman’s 1957 article described “one form of torture” used by the Chinese as forcing American prisoners to stand “for exceedingly long periods,” sometimes in conditions of “extreme cold.” Such passive methods, he wrote, were more common than outright physical violence. Prolonged standing and exposure to cold have both been used by American military and C.I.A. interrogators against terrorist suspects.

The chart also listed other techniques used by the Chinese, including “Semi-Starvation,” “Exploitation of Wounds,” and “Filthy, Infested Surroundings,” and with their effects: “Makes Victim Dependent on Interrogator,” “Weakens Mental and Physical Ability to Resist,” and “Reduces Prisoner to ‘Animal Level’ Concerns.”

The only change made in the chart presented at Guantánamo was to drop its original title: “Communist Coercive Methods for Eliciting Individual Compliance.”

The documents released last month include an e-mail message from two SERE trainers reporting on a trip to Guantánamo from Dec. 29, 2002, to Jan. 4, 2003. Their purpose, the message said, was to present to interrogators “the theory and application of the physical pressures utilized during our training.”

The sessions included “an in-depth class on Biderman’s Principles,” the message said, referring to the chart from Mr. Biderman’s 1957 article. Versions of the same chart, often identified as “Biderman’s Chart of Coercion,” have circulated on anti-cult sites on the Web, where the methods are used to describe how cults control their members.

Dr. Robert Jay Lifton, a psychiatrist who also studied the returning prisoners of war and wrote an accompanying article in the same 1957 issue of The Bulletin of the New York Academy of Medicine, said in an interview that he was disturbed to learn that the Chinese methods had been recycled and taught at Guantánamo.

“It saddens me,” said Dr. Lifton, who wrote a 1961 book on what the Chinese called “thought reform” and became known in popular American parlance as brainwashing. He called the use of the Chinese techniques by American interrogators at Guantánamo a “180-degree turn.”

The harshest known interrogation at Guantánamo was that of Mohammed al-Qahtani, a member of Al Qaeda suspected of being the intended 20th hijacker in the Sept. 11 attacks. Mr. Qahtani’s interrogation involved sleep deprivation, stress positions, exposure to cold and other methods also used by the Chinese.

Terror charges against Mr. Qahtani were dropped unexpectedly in May. Officials said the charges could be reinstated later and declined to say whether the decision was influenced by concern about Mr. Qahtani’s treatment.

Mr. Bush has defended the use the interrogation methods, saying they helped provide critical intelligence and prevented new terrorist attacks. But the issue continues to complicate the long-delayed prosecutions now proceeding at Guantánamo.

Abd al-Rahim al-Nashiri, a Qaeda member accused of playing a major role in the bombing of the American destroyer Cole in Yemen in 2000, was charged with murder and other crimes on Monday. In previous hearings, Mr. Nashiri, who was subjected to waterboarding, has said he confessed to participating in the bombing falsely only because he was tortured.