DoD Report Reveals Some Detainees Interrogated While Drugged, Others "Chemically Restrained"

Reposted with permission from Truthout

by Jeffrey Kaye and Jason Leopold
Original date of publication, July 11, 2012

Detainees in custody of the US military were interrogated while drugged with powerful antipsychotic and other medications that "could impair an individual's ability to provide accurate information," according to a declassified Department of Defense (DoD) inspector general's report that probed the alleged use of "mind altering drugs" during interrogations.

In addition, detainees were subjected to "chemical restraints," hydrated with intravenous (IV) fluids while they were being interrogated and, in what appears to be a form of psychological manipulation, the inspector general's probe confirmed at least one detainee - convicted "dirty bomb" plotter Jose Padilla - was the subject of a "deliberate ruse" in which his interrogator led him to believe he was given an injection of "truth serum."

Truthout obtained a copy of the report - "Investigation of Allegations of the Use of Mind-Altering Drugs to Facilitate Interrogations of Detainees" - prepared by the DoD's deputy inspector general for intelligence in September 2009, under a Freedom of Information Act (FOIA) request we filed nearly two years ago.

Over the past decade, dozens of current and former detainees and their civilian and military attorneys have alleged in news reports and in court documents that prisoners held by the US government in Guantanamo, Iraq and Afghanistan were forcibly injected with unknown medications and pills during or immediately prior to marathon interrogation sessions in an attempt to compel them to confess to terrorist-related crimes of which they were accused.

The inspector general's investigation was unable to substantiate any of the allegations by current and former detainees that, as a matter of government policy, they were given mind-altering drugs "to facilitate interrogation."

But the watchdog's report provides startling new details about the treatment of detainees by US military personnel. For example, the report concludes, "certain detainees, diagnosed as having serious mental health conditions being treated with psychoactive medications on a continuing basis, were interrogated."

Leonard Rubenstein, a medical ethicist at Johns Hopkins Center for Public Health and Human Rights and the former president of Physicians for Human Rights, said, "this practice adds another layer of cruelty to the operations at Guantanamo."

"The inspector general's report confirms that detainees whose mental deterioration and suffering was so great as to lead to psychosis and attempts at self-harm were given anti-psychotic medication and subjected to further interrogation," said Rubenstein, who reviewed a copy of the report for Truthout. "The problem is not simply what the report implies, that good information is unlikely to be obtained when someone shows psychotic symptoms, but the continued use of highly abusive interrogation methods against men who are suffering from grave mental deterioration that may have been caused by those very same methods."

Shayana Kadidal, the senior managing atty of the Guantanamo Project at the Center for Constitutional Rights, said the report, which he also reviewed, "reinforces that the interrogation system at Guantanamo was a brutal system."

"One of the things that struck me after reading this," Kadidal said, "is under the system set up by the [US Court of Appeals for the District of Columbia], any statements detainees made during these interrogations would be presumed accurate even if detainees took medication that could produce unreliable information."

"The burden ends up falling upon the detainee to prove what was said wasn't accurate if they were challenging their detention" in habeas corpus proceedings, Kadidal added.

Explaining the rationale behind forcibly drugging detainees, the former commander of the Joint Medical Group at Guantanamo said, "some detainees were involuntarily medicated to help control serious mental illnesses," according to the report, which added that an ethics committee approved of such plans.

"For example, one detainee had a piece of shrapnel in his brain which resulted in control problems and a limited ability to provide effective consent," the report said.

The detainee with the shrapnel injury may be Abu Zubaydah. In 1992, Zubaydah had suffered a shrapnel wound to the head while fighting on the front lines of a civil war in Afghanistan. Brent Mickum, Zubaydah's habeas attorney, said the high-value detainee has been routinely overdosed with Haldol, the only drug the inspector general identified that was used on certain detainees.

But the report suggests detainees were often not told what types of drugs they were given when they asked or for what purpose it was administered.

Brandon Neely, a former Guantanamo guard who was at the prison facility the day it opened in January 2002, told Truthout, "medics never informed the detainees what the medication was."

"The medics walked around with little white cups that had pills in it a couple of times a day," said Neely, who sometimes accompanied the medics when they distributed the medication. He added that if detainees refused to take it an "Immediate Reaction Force" team, who guards would call to deal with resistant or combative detainees, would administer the medication to prisoners by force.

Rubenstein said the failure to inform prisoners what drugs they were given means "some basic principles of medical ethics were cast aside, especially those requiring a doctor to explain his or her recommendation and seek consent for it as an affirmation of the dignity and autonomy of the patient."
"Even where consent is not forthcoming and involuntary medication is allowed after voluntary medication is not accepted, it should never take place unless this process is followed," Rubenstein said.

The cumulative effects of indefinite detention, interrogations, use of drugs, and other conditions of confinement also appear to have taken a toll on the detainees' mental state and impacted the DoD watchdog's ability to conduct a thorough investigation.

Indeed, when the inspector general sought to interview the attorney representing one detainee who claimed he was given mind-altering drugs during interrogations, the attorney responded, "at this state of his incarceration, [redacted] memory is severely compromised and, unfortunately, we are skeptical that he can provide you with any further details ..."

The investigation also found instances where "chemical restraints" were used on detainees "that posed a threat to themselves or others," which Rubenstein said, "is contrary to US Bureau of Prison regulations, decisions of the US Supreme Court and to medical ethics principles that forbid subordinating the patient's medical interests to prison security."

Lt. Col. Todd Breasseale, a Defense Department spokesman, said, "as a matter of long-standing department policy," he could not comment on whether "chemical restraints" continue to be part of the Standard Operating Procedure (SOP), also known as Tactics, Techniques, Procedures (TTPs), at Guantanamo and other prisons operated by the DoD because "doing so might not only compromise security but [the SOPs] are 'living' documents, subject to regular change and updating."

Media Report Sparked Probe

The inspector general's yearlong probe was launched in June 2008, two months after the publication of a Washington Post report in which some detainees claimed they were forcibly drugged and coerced into making confessions.

One of the detainees at the center of The Washington Post report, Adel al-Nusairi, a former Saudi policeman who was imprisoned at Guantanamo from 2002 to 2005, is prominently featured in the inspector general's report and identified as "IG-02."

According to his attorney's notes cited in The Washington Post, al-Nusairi claimed he was injected with an unknown medication that made him extremely sleepy just before he was interrogated in 2002. When his captors awakened him, he fabricated a confession for US interrogators in hopes they would leave him alone so he could sleep.

"I was completely gone," al-Nusairi told his attorney, Anant Raut. "I said, 'Let me go. I want to go to sleep. If it takes saying I'm a member of al-Qaeda, I will.'"

The inspector general's review of al-Nusairi's medical records showed he was diagnosed as "schizophrenic and psychotic with borderline personality disorder" and injected with Haldol, a powerful antipsychotic medication, whose side effects include lethargy, tremors, anxiety, mood changes and "an inability to remain motionless," according to the watchdog's report.

Haldol can also cause the usually irreversible movement disorder known as tardive dyskinesia. But the inspector general did not say that in his report. The inspector general noted al-Nusairi had told his interrogators he was being forced to take monthly injections that he no longer wanted to receive. The report said "uncooperative" detainees were sometimes forcibly injected with psychoactive medications.

But the investigation concluded there was "no evidence that [al-Nusairi] was administered shots during interrogation."

Despite his diagnosis and the unreliability of the information he provided to his interrogators due to the effects of the antipsychotic medication, al-Nusairi was declared an enemy combatant after he confessed to being a member of al-Qaeda and imprisoned at Guantanamo for three more years before finally being repatriated to Saudi Arabia.

"I think any rational person would agree that confessions of terrorism while under the influence of mind-altering drugs are about credible as professions of love while under the influence of alcohol," Raut, al-Nusairi's attorney, told Truthout.

Two days after The Washington Post story was published, then-Sen. Joe Biden, who at the time was chairman of the Senate Foreign Relations Committee; Sen. Carl Levin, chairman of the Senate Armed Services Committee; and Sen. Chuck Hagel, a senior member of the Foreign Relations Committee and the Senate Select Committee on Intelligence, sent a letter to DoD Inspector General Claude Kicklighter urging him to investigate the detainees' allegations and to focus solely on whether the Department of Defense and its sub-agencies issued written and/or oral policy authorizing the use of "mind-altering drugs to facilitate interrogations."

The CIA's inspector general also conducted an investigation at the request of the Democratic lawmakers into the claims about the use of mind-altering drugs pertaining to detainees in custody of the agency. That report, which Truthout is also seeking under the FOIA, remains classified.

Investigative Gaps

The inspector general reviewed Department of Defense interrogation policy from 2001 through 2008 and interviewed more than 70 military intelligence and medical officials who had oversight of detainee operations in Iraq, Afghanistan and Guantanamo. Top military intelligence officials interviewed by the inspector general said they were "unaware" of any special access "black" program, policies, direction or order authorizing the use of drugs as an interrogation tactic or to "facilitate interrogations."

The watchdog also looked at classified and open-source documents, including detainees' medical records and 1,620 interrogation plans covering 411 detainees between August 2002 and January 2005.

"No interrogation plans were noted which mentioned drugging, medicating, or threatening to drug or medicate a detainee to facilitate interrogation," according to the report, which added that a separate review of detainees' medical records documenting their "physical and psychological care and treatment" did not turn up any evidence "of mind-altering drugs being administered for the purposes of interrogation."

"The 'headline' here is that there's no evidence of any organized, systematic [Department of Defense] effort to use drugs for interrogation purposes," said Gregg Bloche, the author of "The Hippocratic Myth" and a health policy expert and professor of law at Georgetown University who also reviewed the inspector general's report for Truthout. "Can isolated cases of drug use for interrogation purposes be absolutely ruled out? No - as the report acknowledges, there are gaps in evidence available to the [inspector general]. But if there were such cases, they were likely few and far between."

But it appears that the probe did not scrutinize other documents, such as a second set of detainee medical records maintained by the Behavioral Science Consultant Teams or BSCTs that may have contained information relevant to the inspector general's investigation into the use of mind-altering drugs during interrogations.

The BSCTs were made up of psychologists and other mental health technicians and, at one time, psychiatrists. The BSCTs work closely with interrogators in crafting interrogation plans based on the psychological assessments of a detainee's weaknesses. The BSCT psychiatrists and at least one psychologist who passed a special Defense Department psychopharmacology program were able to administer drugs, at least in principle.

Human rights activists have long believed the Defense Department controlled a second set of detainee medical records, but evidence never surfaced to support the suspicions.

However, Truthout has uncovered previously unreported testimony from Army Surgeon General Kevin Kiley's 2005 report on detainee medical operations in Guantanamo, Iraq and Afghanistan (pg. 18-13) that confirms the suggestion.

Kiley indicated that, while BSCTs were not medical personnel and "did not document the medical condition of detainees in the medical record," they "did keep a restricted database which provided medical information on detainees."

Rubenstein added, "if drugs were used those BSCT records should be consulted."

Jose Padilla and "A Deliberate Ruse"

The report also delves into the area of so-called "truth" drugs, which are administered for their presumed mind-altering effects.

Since the start of the "war on terror," intelligence officials have publicly said drugs like sodium pentothal should be introduced in interrogations as a way of getting "uncooperative" detainees to talk.

"We ought to look at what options are out there," former FBI and CIA Director William Webster told reporters in 2002.

The inspector general's report pointed to instances in which top military officials had considered introducing "truth" drugs during interrogations. The watchdog cited an October 2, 2002 meeting of Guantanamo interrogation command and legal staff where the use of "truth serum" on detainees was discussed as having a "placebo effect."

George Bimmerle discussed the use of placebos as ersatz "truth drugs" in a classic 1961 CIA text titled "'Truth' Drugs in Interrogation." Bimmerle wrote that placebos are "most likely to be effective in situations of stress." The drugs are described as acting upon "a subject's sense of guilt," absolving a prisoner under interrogation of responsibility for giving up information, because it is assumed the effect of the drug was to blame.

Interrogators utilized the "placebo effect" when they questioned convicted terrorist Jose Padilla, a US citizen who was arrested in May 2002 on suspicion of plotting to build and detonate a dirty bomb and held as an enemy combatant at the US Naval Brig in South Carolina.

Padilla's federal public defender, Michael Caruso, in a 2006 federal court filing, claimed Padilla was "given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations."

Sanford Seymour, the technical director of the US Naval brig in South Carolina where Padilla was held, however, vehemently denied the charge during a 2006 hearing to determine whether Padilla, a US citizen, was competent to stand trial. Seymour asserted Padilla was injected with an influenza vaccine.

But what Seymour failed to disclose, reported here for the first time, was that Padilla was given the flu shot during an interrogation session and told by his interrogators the injection was "truth serum."

The inspector general's probe determined "the incorporation of a routine flu shot into an interrogation session ... was a deliberate ruse by the interrogation team, intended to convince [redacted, Padilla] he had been administered a mind-altering drug," such as LSD.

Investigators from the inspector general's office reached that conclusion after a visit to the Naval Brig where they reviewed records and interviewed Brig officials about Padilla's claims.

Padilla's name is redacted from the report, but it's clear, based on the detailed descriptions of the allegations, the inspector general is referring to him. The report says the FBI and Joint Task Force 170, the "predecessor organization" of Joint Task Force Guantanamo, interrogated Padilla from June 2002 through October 2002. The Defense Intelligence Agency (DIA) took over his interrogations from October 2002 through March 2003 at which point the FBI and DIA jointly conducted the interrogations.

The inspector general's office also viewed some of Padilla's interrogation videotapes where Padilla "expressed concern about the possible use of drugs to induce him to cooperate with the interrogators."

"The most detailed discussion of truth serum occurred on November 14, 2002, after [redacted] declined to take a polygraph examination," according to the inspector general's report. "The interrogation video recording depicts that following the polygraph declination, [redacted] and the interrogator had a discussion of other techniques which could be used to verify [redacted] statements. Among the techniques described by the interrogator was the use of a 'truth serum.'"

At the end of the tape, according to the inspector general, the interrogator told Padilla, "There is no such thing as a 'truth serum.'" But the initial suggestion apparently affected the detainee when he was given a flu shot during his interrogation session about three weeks later. Padilla asked his interrogator why he was given a shot.

"It was necessary," the interrogator said, "and proceeded to ask [redacted] what kind of shot he received."

Padilla said he was told it was a flu shot, but as the interrogation wore on he said he did not feel well and asked, "what did you shoot me with? Did you shoot me with serum?"
Bloche, the health policy expert and Georgetown University law professor, said the ruse interrogators pulled on Padilla "sounds like a juvenile prank."

"But it's a serious breach of medical ethics," Bloche said. "It undermines trust in military physicians and it's an unfair insult to the integrity of the vast majority of military doctors, who quite rightly believe that this sort of thing is contrary to their professional obligation."

The inspector general rebuked a government agency - possibly the DIA or FBI - involved in Padilla's interrogation for failing "to follow legal review procedures" established by US Joint Forces Command.

Padilla was convicted of terrorism support charges in 2007. Recently, the Supreme Court refused to hear an appeal Padilla filed against former Secretary of Defense Donald Rumsfeld and other Bush administration officials. The high court let stand an appeals court ruling, which dismissed Padilla's complaint related to his treatment at the Naval Brig. Caruso, Padilla's federal public defender, did not return messages left at his Miami office for comment about the inspector general's conclusions.

But just a few months after the deception on Padilla, according to the inspector general's probe, an unnamed DIA "representative" came up with a list of 40 techniques at the request of a Pentagon "working group" overseen by former Secretary of Defense Donald Rumsfeld that met between January and April 2003 to discuss interrogation methods to use on detainees captured in the global war on terror.

The "DIA representative" was identified in a declassified 2009 Senate Armed Services Committee report that probed the treatment of detainees in custody of the US military as Dave Becker, the Interrogation Control Element (ICE) Chief at Guantanamo. Becker recommended to the "working group" the use of drugs, "such as sodium pentothal and Demerol," which was number 40 on the list of interrogation methods presented to the "working group." Becker said those drugs "could prove to be effective" and "relaxes detainee to a cooperative state."

When Senate Armed Services Committee investigators interviewed him about the list of interrogation techniques, Becker said he had recommended the "use of drugs" to Rumsfeld's panel because he'd heard "a rumor" that another agency "had used drugs in their interrogation program."

The inspector general's report went on to say the working group ultimately rejected the use of drugs. But the report failed to mention an important document: a March 2003 legal opinion sent to Pentgaon general counsel William "Jim" Haynes by Justice Department Office of Legal Counsel attorney John Yoo, which said drugs could be used in interrogations as long as they did not "disrupt profoundly the senses or personality." Yoo's memo was cited in the senators' letter to the inspector general calling for the investigation. It's unclear why it was not mentioned in the watchdog's report.

The investigation also reviewed published reports prepared by the US government and human rights organizations revolving around the treatment of detainees in US custody. One report scrutinized was Kiley's 2005 US Army surgeon general report on detainee medical operations in Guantanamo, Iraq and Afghanistan, which said a doctor refused "to provide cough syrup as a 'truth drug'" to an Iraqi detainee. The inspector general interviewed this doctor, who indicated the request, which he turned down as unethical, came from his "brigade S-2 (Intelligence Officer)."

The surgeon general's report also said a licensed practical nurse saw "sedatives (ativan, diazepam, etc.) being used by medical personnel to calm a [Iraqi] detainee so that the detainee would talk more."

According to the DoD inspector general's investigation, after the watchdog attempted to obtain a sworn statement from the nurse, identified in its report as a "non-commissioned officer," about the use of sedatives on detainees, the nurse "elected to make a corrective statement" to what he had claimed three years earlier.

"Sedatives were only given to patient detainees to alleviate pain," the nurse's statement now says.

"They Said It Was Some Candy"

The inspector general's office also received permission from the deputy secretary of defense to interview three detainees in January 2009 about their claims of being forcibly drugged during interrogations. An attorney for one of the detainees declined the interview request. The inspector general did not attempt to interview detainees who claimed they were administered mind-altering drugs during interrogations and have since been repatriated.

The names of the two detainees interviewed are redacted in the report.

The detainee told the inspector general after he was captured in Karachi, Pakistan, by Pakistanis in September 2002 where he held for three days he was transferred to the "Prison of Darkness," in Kabul, Afghanistan for 40 days. He was then sent to the US prison base at Bagram for about a week and then shipped off to Guantanamo.

"[Redacted] stated that during an interrogation at Bagram he was given pills; green and red ones," according to statements the detainee gave the inspector general in April 2009. "After I ate like three of them, my tongue started getting heavier. After that, I woke up and they (interrogators) said thank you very much, we've got what we need. After I ate the stuff, it was like a state of delusion ... it took like three-four days to (feel normal again). I was not normal until I came to Cuba and then I started to feel my mind back. It was a state of delusion. Like everything was a dream. My sensation was not great."

The inspector general asked the detainee if he was told what the pills were.

"At the time they said it was some candy. And I was so hungry so I ate it," the detainee said.

The inspector general then asked the detainee if it was possible what he had experienced at the "Prison of Darkness" was due to exhaustion.

"I don't remember exactly," the detainee said. "If you saw my condition in the Prison of Darkness after 40 days of being tortured and having to stand all the time at Bagram. Those were things consuming my mind at the time ... when I start to remember that, I get somewhat upset, because it was a terrible event in my life. When you had been standing for three-four days in a row, I was so tired, I was exhausted. I can't describe those sensations."

Interrogators who questioned the detainee were interviewed by the inspector general's office. They did not remember the detainee "as each had interrogated over 100 persons during their respected assignments." They denied giving detainees drugs or medication for "interrogation purposes" and never witnessed other military personnel administer detainees drugs. The interrogators said, however, they "frequently gave the detainees food and candy to reward or encourage them to talk," such as "Fruit Loops," "Jolly Ranchers," "cookies," "suckers," and "Taffy's."

"Based on the statements provided by the interrogators and lacking any evidence of drugging, we concluded that we could not substantiate [redacted] allegation," the inspector general's probe concluded.

The inspector general also interviewed a detainee who was captured in Faisalabad, Pakistan, in March 2002 and claimed after he was transferred to Guantanamo that summer an interrogator told him "he would give me something that will make me talk."

However, the watchdog was unable "to correlate this information with records and documents pertaining to [the detainee's] interrogations."

Responding to the completion of the investigation in August 2009, J. Alan Liotta, the principal director in the office of detainee policy, warned in a letter to the inspector general signing off on the document, "The release of this report is likely to generate media attention."

"Please keep our office informed as to when it will be released and efforts to craft talking points regarding the release," Liotta wrote, signing off on the report.

Copyright, Truthout. May not be reprinted without permission.

ACLU Argues Padilla Case Before Federal Appeals Court

What follows is the latest press release in the ACLU advocacy case in support of Jose Padilla's lawsuit against Donald Rumsfeld and other U.S. officials responsible for his incarceration and torture -- held in total isolation for years and subjected to drugging and mind control torture.

ACLU in Appeals Court to Hold Officials Accountable For Torture of Jose Padilla.
Torture Crimes Must Not Go Unpunished, Says ACLU

FOR IMMEDIATE RELEASE
October 26, 2011

CONTACT: Josh Bell, ACLU, (212) 549-2508 or 2666; media@aclu.org

RICHMOND, Va. – The American Civil Liberties Union argued in a federal appeals court today for the reinstatement of a lawsuit against former Defense Secretary Donald Rumsfeld and other government officials for their role in the unlawful detention and torture of U.S. citizen Jose Padilla.

"The defendants in this case seized Jose Padilla from a civilian jail and hid him away in a military brig precisely to keep the courts from interfering with the terrible things they were doing to him. By granting the defendants legal immunity for their cruel acts, the district court vindicated their deliberate efforts to circumvent the Constitution," said Ben Wizner, litigation director of the ACLU National Security Project. "If the law does not protect Jose Padilla – an American citizen arrested on American soil and tortured in an American prison – it protects no one."

The U.S. District Court for the District of South Carolina ruled in February that the defendants were entitled to "qualified immunity" for their roles in the detention and abuse of Padilla because no "clearly established" law prohibited the torture of an American citizen designated an "enemy combatant" by the executive branch. The ACLU asked the U.S. Court of Appeals for the Fourth Circuit to reinstate the case.

Padilla was taken from a U.S. jail in 2002 by military agents, declared an "enemy combatant" and secretly transported to a military brig in South Carolina. He was imprisoned without charge for nearly four years, subjected to extreme abuse and was unable to communicate with his lawyers or family for two years. The illegal treatment included forcing Padilla into stress positions for hours on end, punching him, depriving him of sleep and threatening him with further torture and death.

Attorneys on the case are Wizner and Alex Abdo of the ACLU; Jonathan Frieman, Hope Metcalf and Tahlia Townsend of the Allard K. Lowenstein International Human Rights Clinic at Yale Law School; and Michael O'Connell of the law firm Stirling & O'Connell.

More information about the case is available online at:
www.aclu.org/national-security/padilla-v-rumsfeld

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.)

Bush DOJ Official Daniel Levin "Not Opposed" to Torture Investigations

Originally posted at Firedoglake



Some days it appears that torture is a dead issue in America. But at other times, events occur that belie such pessimism. One such event was the admission by Daniel Levin, author of one of the Bush administration's infamous torture memos, that criminal investigations of Bush officials for their role in the implementation of torture was acceptable to him.

Here's the full statement, made last week during an American University/Washington College of Law conference on professional ethics and the torture memos (video):

“I personally am not opposed to criminal investigation of the conduct of myself and others during the period in question, because I think any government employee is appropriately subject to investigation of their conduct while they are serving in the government.”

Daniel Levin, as then Acting Assistant Attorney General, was the author of the December 30, 2004 Memorandum to then Deputy Attorney General James Comey, which took up the issue of the legal standards surrounding the CIA's use of torture techniques, previously allowed by opinions written in August 2002, and signed by previous Deputy Attorney General Jay Bybee. But these opinions were heavily ghostwritten by John Yoo, with assistance from Cheney's counsel, David Addington. (Addington's role was a matter of some caviling, as noted by Marcy Wheeler last May.) Levin famously critiqued a number of the conclusions in the Yoo/Bybee memos regarding torture, but as David Cole pointed out in his recently published book, The Torture Memos, the Levin memo "did not change anything with respect to the bottom line.... [it] was more an exercise in public relations than in law."

Reportedly, Levin also told the AU panel "he would support the creation of an independent commission to review the Bush torture policies."

The Alliance for Justice (AFJ), in a November 9 press release,  coupled the Levin admission with news of John Yoo's withdrawal from this week's Federalist Society convention. Yoo was due to speak at a November 12 panel on "the role of government lawyers in the war on terror," along with his civil defense attorney, Miguel Estrada. (Yoo is being sued by former supposed "dirty bomber" and torture victim, Jose Padilla.) AFJ had planned a demonstration outside the Convention the day of Yoo's participation.

The President of the Federalist Society said Yoo canceled because of "a scheduling conflict." Yoo himself won't comment, but AFJ president Nan Aron, said:

John Yoo’s withdrawal from the Federalist Society Convention shows that pressure is building to hold accountable those who provided legal cover for torture....

AFJ intends to follow through with their D.C. demonstration at the Mayflower Hotel, site of the Federalist Society convention, on November 12, as part of National Torture Accountability Day. AFJ has been conducting a petition campaign aimed at getting Obama Attorney General Eric Holder to release the DOJ's Office of Professional Responsibility report on the torture memos. It's widely believed the OPR report is highly critical of the actions of the Bush Administration attorneys, and its footnotes and appendices may be a gold mine for anti-torture researchers and lawyers.

Meanwhile, the news on the other side of the torture fence, if you will, is not so good. Al Jazeera just published a well-documented article describing the ongoing abuse of prisoners at Guantanamo prison:

Authorities at the prison deny mistreating the inmates, but interviews with former detainees, letters from current prisoners and sworn testimony from independent medical experts who have visited the prison have painted a disturbing picture of psychological and physical abuse very much at odds with White House rhetoric on prisoner treatment....

According to the letter, prison authorities inflict "humiliating punishments" on inmates and prisoners face "intentional mental and physical harm".

"The situation is worsening with the advent of the new management," the prisoner writes, noting... that the new rules were imposed in January this year. Conditions, he says, "do not fit the lowest standard of human living".

Meanwhile, the Center for Constitutional Rights has joined psychologist Trudy Bond in pressing a licensure complaint in the State of Louisiana against Colonel Larry James, a former chief psychologist of the Guantanamo Behavioral Science Consultation Teams (BSCTs), who has been accused of participation in torture at that facility. The facts behind the case have been described well in a couple of articles recently. Despite plenty of evidence of unethical and illegal conduct, the Louisiana Board of Examiners refuses to even investigate James (who has meanwhile decamped to the School of Professional Psychology at Wright State University in Ohio, where he serves as dean).

The James case deserves a wider hearing in the court of public opinion, because, as Yoo's withdrawal from the Federalist Society Convention, and Levin's acceptance of investigations indicate, exposure and political protest are necessary if accountability for torture and other war crimes is going to ever be a reality. As a society, we cannot let the fact of U.S. use of torture slip out of the public eye. That is what the torturers want more than anything.

We cannot let that happen, because as the activities at Guantanamo even recently demonstrate, brutality and inhumanity once unleashed threaten the underpinnings of legality and morality in a society. We've been to the precipice. Let us decisively step back. That will only happen when wide-ranging investigations, open access to government documentation, and criminal prosecutions occur.

Blood Pacts Are Seldom Broken

While the ACLU, CCR, EFF and other civil liberties groups are fighting valiantly to protect Americans against governmental eavesdropping, the fight may be losing for technological-political reasons, and not simply legally.

The vast web that is electronic snooping is world-wide and includes reciprocal agreements between countries to share information. The actual wiretappers, in many instances, are "private" companies contracted out by the NSA or other governmental agencies. In both such cases, Fourth Amendment protections are ineffective, and FISA courts inapplicable.

Take the 2006 agreement the U.S. government made with Mexico to build a huge telecom/Internet eavesdropping center. They don’t need to concentrate solely on communications originating or terminating in the United States… they are contracting it out!

What follows is from the State Department document used to procure vendors for the project with AFI (Mexico’s version of the NSA) noted above (.doc link and Google cache link):

This procurement action is undertaken to establish a lawful interception solution that will provide the Government of Mexico, Procuraduria General de la Republica de Mexico (PGR), Agencia Federal de Investigaciones (AFI) with the capability to intercept, analyze, and use intercepted information from all types of communications systems operating in Mexico…. Equipment supplied must be manufactured in the United States….

The proposed system must comply with the following AFI stated requirements for interception of target calls and sessions from (1) TELMEX PSTN network, through analog lines, (2) TELCEL TDMA and GSM network, (3) NEXTEL iDEIM/GSM network, (4) TELEFONICA network, (5) UNEFON network, (6) IUSACELL CDMA network and TDMA network, (7) Existing CISCO VoIP network at customer’s premises, (8) packet data from the Mexico PRODIGY ISP network. Additionally the client desires the establishment of a central monitoring center with the capabilities of (1) real-time and off-line playback, (2) fax decoding, (3) packet data decoding, (4) storage of all calls for at least 25,000 hours, (5) storage of all session related information, (6) 30 monitoring stations and 30 printers, (7) cellular location and tracking. Capabilities must include TDMA, GSM, CDMA, iDEN, AMPS, PCS, landline, FAX, Email, chat, internet, SMS and VoIP….

1. The successful solution will fulfill the following:

a. Help deter, prevent, and mitigate acts of major federal crimes in Mexico that include narcotics trafficking and terrorism.
b. Strengthen the USG’s and Mexico’s protective posture to disseminate timely and accurate, actionable information to each country’s respective federal, state, local, private, and international partners.

As James Bamford noted in this book, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America, p. 228:

Since the U.S. certainly qualifies as an “international partner,” it means Mexico is obligated to disseminate its data to a U.S. agency. But what is perhaps even more troublesome is the requirement to share its data with “private” partners — in other words private surveillance companies within the U.S.

This type of arrangement with Mexico and other countries may in fact be among the most secret parts of the Bush administration’s entire warrantless eavesdropping program. That is because it completely bypasses the requirement for probable cause that one of the parties is connected to al-Qaeda. The intercepted data is gathered by Mexicans in Mexico… and passed in bulk to the U.S., possibly to the NSA or FBI or Drug Enforcement Administration.

Astute commenter, William Ockham, pointed out the following at an interesting post at Emptywheel/FDL yesterday:

... if you read (between the lines of) the documents filed in the Nacchio case, you can see that the NSA was paying the telcos to tap into all the fiber optic cable laid overseas so that the NSA could pull all that traffic into the Narus systems any time they wanted.

As a famous quote from an Oliver Stone movie says, “We are through the looking glass here, people.”

U.S. democracy is proving to be a giant failure, and in its place we are seeing the worst sort of nightmare any dystopian author could imagine.

Echelon II

Bamford calls the system of setting up taps on all fiber-optics cables, in conjunction with the use of private companies like Verint or Narus or NICE Systems, Echelon II. (For more introduction to Project Echelon, a massive signals intelligence global interception and relay system run by the U.S. and its closest allies, see this article.)

Bush attorney Stephen Bradley testified before the House Judiciary Committee (Subcommittee on Crime, Terrorism, and Homeland Security), during hearings to discuss updating FISA (9/6/06), as reported at In These Times:

As a Justice Department attorney [Bradbury] told the House Judiciary Committee after the wiretapping program was revealed, “I think the president has made it clear that there is no other program that involves domestic electronic surveillance of domestic communications,” leaving open the possibility that foreign electronic surveillance of both foreign and domestic communications is still ongoing.

The NSA and other government agencies are throwing smoke and mirrors, and the ACLU and other groups are already lagging behind events. The government has been routing its eavesdropping work around U.S. prying eyes for some time. Bush’s real crime, from the standpoint of the spooks and FBI types is that he pushed hard to do in the U.S. what the government has promoted in dictatorships and authoritarian countries for some time, including reciprocal agreements, secret backdoors, etc. to such up the info. By pushing hard in the U.S., he was bound to stir up a hornets nest of civil libertarians, etc., or whistleblowers like Mark Klein, a San Francisco AT&T; tech who demonstrated how the government was sucking all U.S. Internet traffic into servers at Room 641A at AT&T;'s Folsom Street building.

It’s not that Comey or the FBI were upset about all the wiretapping when they went to Ashcroft's hospital bed to get him to reject Bush/Gonzales's surveillance request. These cops got their dream come true when CALEA passed in 1994. They’ve spent much the subsequent years finding ways to expand access to the Internet, and one way they did that to get close to Verint, the private company that secretly taps most U.S. communications.

They just don’t want to get caught. If I’ve learned anything from my anti-torture work, it’s that these governmental crimes are concerned with cover-up from day one. If you think about it, it’s built into the covert mind-set and SOP. In fact, it’s one way to identify what is a covert op, i.e., there’s misdirection and cover-up from the very beginning.

We cannot be protected by FISA anymore. Nothing can protect us. That’s the shocking truth.

Orwellian Pessimism vs. Social Struggle

As if the reader cannot tell... I am very pessimistic these days. The release of the ICRC report on the CIA barely stirred a ripple, unless you frequent certain websites (as we do), but in Congress and the press as a whole, it’s business as usual, diverted by the circus that is the financial cataclysm. The latter itself is essentially a threatened strike by big finance capital to bring down the entire world financial system if it is not compensated for its amazing losses, once their attempt to totally game the system fell apart, mainly because they believed their own propaganda about the market.

The political parties are morally and practically dead. What they do doesn’t matter anymore. This is the legacy of lawless war, torture, and out-of-control spying. Hundreds of thousands, if not millions of Americans now staff this military-spy-surveillance world, both private and government, and they have a vested interest in its preservation. Moreover, the boards of the private companies move seamlessly in and out of the corporate world, including its financial, major energy and industrial sectors.

One asks, "Who’s in charge?" Is it really Dick Cheney from a safe house in Arlington? A very good question.

Do not look for a single individual. The rule is out there for anyone to see. It’s not a dictatorship of a single person. It’s rule by committees, and these committees are "democratically" open to anyone who has the money or has risen as a dedicated and talented servant of the system. It's rule by a class.

We’re about to have verified (oh, sometime this year, I believe), that the U.S. did conduct drug and behavioral experiments upon prisoners, and most likely Jose Padilla among them. (See also Padilla's attorneys' Motion to Dismiss for Outrageous Government Conduct.) Will anything happen as a result? Will we even see post-Church Committee laws passed to protect us? No. The demand for consensus was drawn in the sand on 9/11 (or rather in subsequent months and years), and sealed with the deaths of 100,000s of Iraqis and an unknown number of victims who suffered death by torture (likely in the hundreds, at least).

Blood pacts are seldom broken. If you didn’t speak out before, it’s very hard to do so now.

As a result, we will have both social decay, and more tumult and oppression. This is because while the populace is passive, it is disgruntled, and the oligarchy will want to snuff out any sparks of resistance or effective opposition. Obama may be humane - god, I hope so - but he totally accepts the need for the oligarchy to rule.

I’m not sure what should be done at this point. Without some kind of social struggle, the last bastions of liberty, which were set aside by having an independent judiciary, will succumb, and there will be nothing left to protect us.

Death of a "Dirty Bomb" Frame-up

Andy Worthington has an excellent article at AlterNet analyzing the recent decision by Bush's Justice Department to drop "dirty bomb" charges against British resident and Guantánamo prisoner Binyam Mohamed, the so-called co-conspirator with Jose Padilla to construct and detonate a "dirty bomb" on U.S. soil.

For over three years, Binyam's lawyers at Reprieve, the London-based legal action charity, have been arguing that the allegations against Binyam were extracted through the use of torture -- in Morocco, where Binyam was tortured for 18 months, after being rendered by the CIA, and at the CIA's own "Dark Prison," near Kabul, where he was held for four or five months from January 2004, before his transfer to the U.S. military prison at Bagram airbase, and his eventual arrival at Guantánamo in September 2004.

U.S. authorities got Binyam to "confess" under torture that he had met with Khalid Sheikh Mohammed, Abu Zubaydah, Sheikh al-Libi, Ramzi bin al-Shibh and Jose Padilla to discuss the "dirty bomb" plot. Except guess what? Abu Zubaydah and al-Libi were already in U.S. custody on the date of Binyam's "confessed" plot. The U.S. knew this, too, and continued to torture and prosecute Binyam. And now that the Justice Department has dropped its charges, the Department of Defense, which is conducting the notoriously unjust military tribunals at Guantanamo says it's still "reviewing" Binyam's case.

Mohamad was one of five Guantanamo detainees who had charges dropped against them. (They are not free, however, and the U.S. says there are other charges and further investigation and review to be undertaken.) In Binyam's case, it's widely suspected dropping certain charges were meant to forestall the release of documents proving torture and other mistreatment, and British High Court judges have been highly critical of U.S. conduct in the case. "Torturers do not readily hand over evidence of their conduct," the judges are quoted as saying.

The military tribunals are so unfair that one of its chief prosecutors, Lt. Col. Darrel J. Vandeveld, quit over the handling of evidence in the Mohammed Jawad case, and went public with his criticisms of the frame-up trials. He was the fourth prosecutor to resign from Bush's military kangaroo courts. A Los Angeles Times article on Vandeveld described the former prosecutor's actions:

Vandeveld's claims are particularly explosive.

In a declaration and subsequent testimony, he said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including exculpatory information -- material considered helpful to the defense.

Saying that the accused enemy combatants were more likely to be wrongly convicted without that evidence, Vandeveld testified that he went from being a "true believer to someone who felt truly deceived" by the tribunals. The system in place at the U.S. military facility in Cuba, he wrote in his declaration, was so dysfunctional that it deprived "the accused of basic due process and subject[ed] the well-intentioned prosecutor to claims of ethical misconduct."

Vandeveld is a hero for trying to expose what he called "the creeping rot of the commissions." The reaction from his military colleagues? While some have been supported, there was also "outrage and condemnation," and now this Army Reserve officer fears for his safety and that of his family.

But then this is the final act of a brazen coven of war criminals. George W. Bush announced the other day that he was not going to close Guantanamo -- in fact, he had never even considered it. Meanwhile, his Defense Department made it clear that if it was up to them, no one would ever be released from that facility. The U.S. government is trying to undo the sentence of Salim Hamdan, whose years at Guantanamo were to be counted in his final five year sentence, administered as part by one of the Pentagon's military commissions. While Hamdan should be freed in December, the government is appealing, hoping to keep Hamdan in prison at least another five years, and maybe forever.

“The length of the sentence is a matter of indifference to us,” Morris said. He said that if the jury still wants Hamdan released on Dec. 31, it could resentence him to however many days remained until then.

Marcion has covered the recent events in some depth over at Daily Kos, and his article there is worth reading. His summary makes some essential points:

And for anybody who thinks that the Guantanamo horror stories are the exception, and that after the detention center is closed under the next administration, or after these terror show trials end, that all will be back to normal, I have to say - this is normal. These publicized cases are merely shedding light on an inherently unfair and fixed system. Just as the Trotsky/Bukharin show trials revealed the truth about the entirety of the fixed Soviet justice system, these show trials reveal the same truth about the American system. Our prisons are filled with people whose only crime was attracting the attention of some cop cruising for an arrest. Once somebody is arrested, the prosecutors go to work trying to fix the case so as to get the maximum sentence possible, and the cops cooperate with providing the evidence or testimony that the prosecutor will need to get the conviction, by torturing their prisoner within the bounds of the law (i.e. no permanent bruising). The majority of jurors, being good Americans, are also convinced that justice equals longest sentence possible, and that cops never lie, but defendants always do. Any jurors that show any hesitation or moral qualms are kicked during voir dire. A prosecutor or cop who shows some qualms about pulling out all the stops sees their career come to a grinding halt quickly, while the guys who get convictions get promoted and eventually become judges.

The "justice" of Guantanamo has already come to America, along with the torture and the indefinite detention and obliteration of civil rights. As a follow-up, the reader could go read my recent posting, Battle Over Habeas -- Torture Inc. Comes to America.

Battle Over Habeas -- Torture Inc. Comes to America

The decision today by the D.C. Court of Appeals to reverse Judge Ricardo Urbina's decision yesterday to release 17 Uighur Muslim prisoners held indefinitely at Guantanamo Naval Base prison can best be understood in the light of an important related news story.

Over at Associated Press, Pamela Hess has an exclusive regarding revelations around the torture of U.S. citizens and residents at the U.S. naval brigs at Charleston, South Carolina and Norfolk, Virginia. According to documents obtained via FOIA by the ACLU, the Pentagon was warned that a prisoner in the naval brig, Yaser Hamdi, "was being driven nearly insane by months of punishing isolation and sensory deprivation." Hamdi was a U.S. citizen, as were two other prisoners held incommunicado, tortured, and interrogated by the CIA and Defense Intelligence Agency officials. (Hamdi renounced his U.S. citizenship as a condition of his release from custody.)

The other prisoners held were Jose Padilla, a U.S. citizen, and Ali Saleh Kahlah al-Marri, a legal resident. Both are still in custody: Padilla convicted of supporting terrorism, and al-Marri still appealing his detention.

What the ACLU documents reveal is that military facilities on U.S. soil adopted the Standard Operating Procedure at Guantanamo prison, with its emphasis on isolation, painful stress positions, sleep deprivation, threats, and indefinite detention, among other indignities and forms of psychological torture.

As has so often been the case, some members of the military blanched at being drawn into Bush/Cheney/Rumsfeld's Torture Inc. Per the AP story:

The documents show that some officials at the Charleston brig were deeply skeptical about the mandate that Guantanamo rules should apply in the United States, a decision made by the defense secretary's office, according to the documents.

"You have every right to question the 'lash-up' between GTMO and Charleston — it was the first thing I ask (sic) about a year ago when I checked on board," wrote one official to another in 2006. "In a nutshell, they gave the Charleston detainee mission to (Joint Forces Command) who promptly gave it to (Fleet Forces Command) with a 'lots of luck' and nothing else."

One "frustrated officer" wrote to unnamed government officials in June 2003 that replicating the Gitmo SOP at the naval brig actually made conditions worse there than at Guantanamo because of the near-total isolation of the brig detainees from any other prisoners. (One wonders, if the fact they were legal U.S. citizens or residents, held as "enemy combatants" in total disregard of their constitutional rights, may have also contributed to their complete sense of hopelessness and breakdown.)

Jonathan Freiman, an attorney with the Lowenstein Clinic at Yale, described the importance of the new revelations:

"The application of Guantánamo protocols on U.S. soil is incredibly significant and indicates how far the administration has gone in terms of suspending the law.... The Bush administration has long argued that detainees held in Guantánamo are not entitled to any constitutional protections – an argument the Supreme Court has recently rejected. But this is not even Guantánamo – we are talking about creating prisons beyond the law right here in America."

Legal Battle Over Habeas Corpus

The administration was "deeply concerned" about the decision the other day by Judge Urbina to release the Uighurs. Not because it believes the Uighurs are "enemy combatants" any more. (Smintheus over at Never In Our Names has written an excellent article on the history of the Uighurs case.) The New York Times reports (emphasis added):

The White House press secretary, Dana Perino, said the administration was “deeply concerned by, and strongly disagrees with” the decision. She added that the ruling, “if allowed to stand, could be used as precedent for other detainees held at Guantánamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country.”

The importance to the government of maintaining the suspension of habeas corpus -- the right of a prisoner to seek legal redress for his or her imprisonment, and to demand what charges under which they are held -- is rarely discussed in terms of its importance to the U.S. torture protocols. The use of isolation and the inculcation of helplessness and fear is key to the "success" of the U.S. version of psychological torture. I elaborated on this last August when discussing the verdict in the Hamdan military commission trial:

Demonstrating omnipotence and total control, by the way, is why the military, CIA and Bush are so insistent in denying detainee rights, especially habeas corpus. As Jane Mayer reports in her new book, The Dark Side, administration stalwarts Dick Cheney and David Addington were incensed by 2004 Supreme Court rulings granting "enemy combatants" due process rights, such as having an attorney, or challenging their detention in court, convinced by "CIA arguments that any outside contact might jeopardize the psychological control necessary to interrogate terror suspects" (p. 302, emphasis added).

Bringing Bush to Runnymede

Bush's lackey attorney general, Mukasey, had a spokesman express the pleasure the government took in the DC courts issuance of a temporary stay in Urbina's decision. When making his decision, Judge Urbina had said, denying the executive branch had the right to suspend the centuries-long practice of habeas corpus, "I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention."

It's hard to believe the DC court thought it had any leg to stand on, given that the Supreme Court last June ruled unconstitutional the provision of the Military Commissions Act of 2006 that suspended the use of habeas corpus by detainees in Bush's "war on terror." Passage of the MCA is one of the great shames of this nation. The bill was passed with the support of presidential candidate John McCain, who voted for it despite the fact it endorsed torture and suspension of habeas corpus. Repeal of this law should be one of the first priorities of the next Congress. The new ACLU documents, revealing how torture treatment abroad migrated to the United States, and then its use on U.S. citizens, demonstrate how slippery is the slope that leads from so-called national security exigency to the destruction of basic domestic civil liberties.

Here's the link to the Supreme Court decision -- BOUMEDIENE ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL. -- provided here for befuddled appeals court judges. Speaking for the majority, Justice Kennedy wrote:

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives....

"Chief among these..." The stay of Urbina's decision is a setback, but the tide is turning against Torture Inc. Their business is widely exposed as a barbaric and reprehensible practice, and the day is coming when its proponents and practitioners will themselves have to stand before the bar of justice to answer for their crimes against humanity, against freedom, and against democracy.

"Torturing Democracy"

Speaking of democracy... an award-winning documentary maker, Sherry Jones, has made a new documentary that examines America's detention and interrogation practices in the "war on terror." Torturing Democracy, premiers Thursday, October 16 at 9 p.m. on Thirteen/WNET. It will also be available to view -- free -- online at torturingdemocracy.org, a website the producers are running in tandem with the amazing folks at National Security Archive (George Washington University).

The documentary details how the secret U.S. military interrogation program - "Survival, Evasion, Resistance and Escape" - or SERE - became the basis for many of the harshest methods used in interrogating prisoners in U.S custody. Besides the streaming of the film, the website will include a timeline of key events; extended interviews; and the memos, legal opinions and other documents featured in the film.

Visiting the site and viewing the professionally made film is highly recommended.

Court Confirms President’s Dictatorial Powers in Case of US “Enemy Combatant” Ali al-Marri

As posted on the website of Andy Worthington, author of The Guantánamo Files. I saw the following important article reposted over at Michael Otterman's American Torture website. I think it's so important, I'm reproducing it here in full.

Wake up, America! On July 15, the Court of Appeals for the Fourth Circuit ruled by 5 votes to 4 in the case of Al-Marri v. Pucciarelli (PDF) that the President can arrest US citizens and legal residents inside the United States and imprison them indefinitely, without charge or trial, based solely on his assertion that they are “enemy combatants.” Have a little think about it, and you’ll see that the Fourth Circuit judges have just endorsed dictatorial powers.

In the words of Judge William B. Traxler, whose swing vote confirmed the court’s otherwise divided ruling, “the Constitution generally affords all persons detained by the government the right to be charged and tried in a criminal proceeding for suspected wrongdoing, and it prohibits the government from subjecting individuals arrested inside the United States to military detention unless they fall within certain narrow exceptions … The detention of enemy combatants during military hostilities, however, is such an exception. If properly designated an enemy combatant pursuant to legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities.”

As was pointed out by Judge Diana Gribbon Motz, who was steadfastly opposed to the majority verdict (and whose opinion was endorsed by Judges M. Blane Michael, Robert B. King and Roger L. Gregory), “the duration of the relevant hostilities” is a disturbingly open-ended prospect. After citing the 2007 State of the Union Address, in which the President claimed that ‘[t]he war on terror we fight today is a generational struggle that will continue long after you and I have turned our duties over to others,’” Judge Motz noted, “Unlike detention for the duration of a traditional armed conflict between nations, detention for the length of a ‘war on terror’ has no bounds.”

The Court of Appeals made its extraordinary ruling in relation to a habeas corpus claim in the case of Ali Saleh Kahlah al-Marri, whose story I reported at length here. To recap briefly, al-Marri, a Qatari national who had studied in Peoria, Illinois in 1991, returned to the United States in September 2001, with his US residency in order, to pursue post-graduate studies, bringing his family -- his wife and five children -- with him. Three months later he was arrested and charged with fraud and making false statements to the FBI, but in June 2003, a month before he was due to stand trial for these charges in a federal court, the prosecution dropped the charges and informed the court that he was to be held as an “enemy combatant” instead.

He was then moved to a naval brig in Charleston, South Carolina, where he has now been held for five years and one month in complete isolation in a blacked-out cell in an otherwise unoccupied cell block. For the first 14 months of this imprisonment, he was subjected to sleep deprivation and extreme temperature manipulation, frequently deprived of food and water, and interrogated repeatedly.

In August 2003, representatives of the International Red Cross were finally allowed to visit al-Marri, and two months later he was permitted to meet with a lawyer, when he finally had the opportunity to explain that his interrogators had “threatened to send [him] to Egypt or to Saudi Arabia where, they told him, he would be tortured and sodomized and where his wife would be raped in front of him.”

Based on advice given to Donald Rumsfeld by Defense Department lawyers regarding the use of isolation at Guantánamo, when the lawyers warned that it was “not known to have been generally used for interrogation purposes for longer than 30 days,” al-Marri has now been held in solitary confinement for 67 times longer than the amount of time recommended by the Pentagon’s own lawyers (this figure includes the six months that he spent in isolation in Peoria County Jail and the Metropolitan Correction Center in New York, before being transferred to Charleston).

It is, therefore, unsurprising that his lawyer, Jonathan Hafetz of the Brennan Center for Justice at the New York University School of Law, has explained that he is suffering from “severe damage to his mental and emotional well-being, including hypersensitivity to external stimuli, manic behavior, difficulty concentrating and thinking, obsessional thinking, difficulties with impulse control, difficulty sleeping, difficulty keeping track of time, and agitation.”

So what is Ali al-Marri supposed to have done to justify being held in solitary confinement for almost as long as the duration of the Second World War? The presidential order declaring him an “enemy combatant” stated simply that he was closely associated with al-Qaeda and presented “a continuing, present, and grave danger to the national security of the United States.” Elaborating, in subsequent statements, the government has claimed that he was part of an al-Qaeda sleeper cell, who had been instructed to carry out further terrorist attacks in the United States, targeting reservoirs, the New York Stock Exchange and military academies.

What’s particularly worrying about these charges is that, by the government’s own admission, the primary sources for its supposed evidence against al-Marri are confessions made by Khalid Sheikh Mohammed (KSM), the alleged architect of the 9/11 attacks, during the three months following his capture in March 2003, when, as even the CIA has admitted, he was subjected to waterboarding, a form of controlled drowning, which the torturers of the Spanish Inquisition at least had the honesty to call “tortura del aqua.”

As I discussed at length in an article last summer, KSM stated during his tribunal at Guantánamo in March 2007 that he had given false information about other people while being tortured, and, although he was not allowed to elaborate, I traced several possible victims of these false confessions, including Majid Khan, one of 13 supposedly “high-value” detainees transferred with KSM to Guantánamo from secret CIA prisons in September 2006, Saifullah Paracha, a Pakistani businessman and philanthropist held in Guantánamo, and his son Uzair, who was convicted in the United States on dubious charges in November 2005, and sentenced to 30 years in prison.

As I also stated last November, “It’s possible, therefore, that al-Marri is another victim of KSM’s tangled web of tortured confessions, but whether or not this is true, the correct venue for such discussions is in a court of law, and not in leaks and proclamations from an administration that appears to be intent on holding him without charge or trial for the rest of his life.”

When I wrote these words, it seemed possible that the Fourth Circuit judges would act to prevent al-Marri from having the dubious distinction of being the last “enemy combatant” on the US mainland, and would put pressure on the government to transfer him to a federal prison to face a trial in a US court, as happened with Jose Padilla, a US citizen and one of two other “enemy combatants” imprisoned without charge or trial -- the other being Yaser Hamdi, a US-born Saudi, who was held in Guantánamo until it was ascertained that he held US citizenship. In Hamdi’s case, however, a brief stay at the Charleston brig was followed by a deal that allowed him to return to Saudi Arabia.

In June 2007, a panel of three Fourth Circuit judges dealt a blow to the administration’s claims by ruling that “the Constitution does not allow the President to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’” Last week’s decision followed a successful appeal by the government, but when the Fourth Circuit court met en banc to reconsider al-Marri’s case in October, it seemed possible that they would uphold the panel’s June verdict. When Judge Michael asked the government’s representative, Gregory J. Barre, “How long can you keep this man in custody?” and Garre replied that it could “go on for a long time,” depending on the duration of the “war” with al-Qaeda, Judge Michael stated, “It looks like a lifetime.”

I now realize, of course, that it was always highly improbable that the Fourth Circuit court -- widely regarded as the most right-wing court in the country -- would end Ali al-Marri’s legal limbo, although it was somewhat ironic that, in a separate ruling, the swing-voting Judge Traxler ruled in al-Marri’s favor when it came to a decision to grant him some as yet unspecified ability to challenge the basis of his definition as an “enemy combatant.”

This, at least, earned him the gratitude of Judge Motz, who stated that “the evidentiary proceedings envisaged by Judge Traxler will at least place the burden on the Government to make an initial showing that ‘the normal due process protections available to all within this country’ are impractical or unduly burdensome in al-Marri’s case and that the hearsay declaration that constitutes the Government’s only evidence against al-Marri is ‘the most reliable available evidence’ supporting the Government’s allegations.”

In other respects, however, the court only added to its reputation as a defender of the indefensible. Not content with endorsing the President’s dictatorial right to imprison “enemy combatants” without charge or trial on the US mainland, the judges responsible for the majority verdict ruled that the President did not even have to allege, as he did with Yaser Hamdi and Jose Padilla, that an “enemy combatant” had either been in Afghanistan or had ever raised arms against US forces.

The injustice of this was pointed out in the opinion of Judge Motz, who stated that, “unlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict, and not alleged to have engaged in combat with United States forces anywhere in the world.”

Judge Motz added, however, “With regret, we recognize that this view does not command a majority of the court. Our colleagues hold that the President can order the military to seize from his home and indefinitely detain anyone -- including an American citizen -- even though he has never affiliated with an enemy nation, fought alongside any nation’s armed forces, or borne arms against the United States anywhere in the world. We cannot agree that in a broad and general statute, Congress silently authorized a detention power that so vastly exceeds all traditional bounds. No existing law permits this extraordinary exercise of executive power.”

Disturbingly, as Judge Motz mentioned above, the court also indicated its presumption that its ruling applies not just to legal residents like Ali al-Marri, but to US citizens as well. Judge Traxler noted, “it is likely that the constitutional rights our court determines exist, or do not exist, for al-Marri will apply equally to our own citizens under like circumstances,” and Judge Motz explained that the lack of distinction between citizens and residents had become apparent at oral argument, when the government “finally acknowledged that an alien legally resident in the United States, like al-Marri, has the same Fifth Amendment due process rights as an American citizen. For this reason, the Government had to concede that if al-Marri can be detained as an enemy combatant, then the Government can also detain any American citizen on the same showing and through the same process.”

We have, to be honest, been here before. In September 2005, a three-member panel upheld, in Padilla’s case, the President’s power to hold US citizens indefinitely without charge or trial (PDF). This verdict was never tested, as the government took Padilla out of the brig and into the court system (where he was convicted in January) before the Supreme Court could rule on his case, but as Glenn Greenwald noted in an article in Salon, the upshot is that the 2005 Padilla verdict still stands. To that extent, all that has changed now is that the Fourth Circuit court has reinforced its former ruling en banc.

Al-Marri’s lawyers will doubtless appeal, and, if justice still counts for anything, his case will go all the way to the Supreme Court. However, it remains incomprehensible to me that the whole sorry saga has lasted for so long already. As Jonathan Hafetz and his colleagues explained last November when they presented their arguments to the Fourth Circuit judges (and as Judge Motz noted last week), the President “lacks the legal authority to designate and detain al-Marri as an ‘enemy combatant’ for two principal reasons”: firstly, because the Constitution “prohibits the military imprisonment of civilians arrested in the United States and outside an active battlefield,” and secondly, because, although a district court previously held that the President was authorized to detain al-Marri under the Authorization for Use of Military Force (the September 2001 law authorizing the President to use “all necessary and appropriate force” against those involved in any way with the 9/11 attacks), Congress explicitly prohibited “the indefinite detention without charge of suspected alien terrorists in the United States” in the Patriot Act, which followed five weeks later.

That seems pretty clear to me. In the “War on Terror,” however, as I have learned during my research over the last two and a half years, all forms of logical thought -- sometimes in the courts, most of the time in military custody, and as a permanent fixture in the war rooms where torture was endorsed -- have been engulfed in a fog of fear and barbarism.

I leave the final words to Judge Motz, and her clear-eyed awareness of the injustice of the al-Marri verdict. “To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President call them ‘enemy combatants,’ would have disastrous consequences for the Constitution – and the country,” Judge Motz wrote. “For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws ‘to go unexecuted, and the government itself to go to pieces.’ We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.”

Unless Ali al-Marri is allowed a meaningful review of his status as an “enemy combatant,” Judge Motz’s fears have already come true.

Down the Rabbit Hole: HIV, Guantanamo, "Dirty Bombers" & the Devolution of the U.S. into a Torture State

"Whither I fly is Hell..."

Candace Gorman is reporting that her client, Guantanamo prisoner Abdul Hamid al-Ghizzawi, contracted AIDS at Guantanamo's Camp Delta. He believes he was infected during a "routine blood test."

Last October I wrote about Mr. al-Ghizzawi's dire medical state, and the Amnesty International campaign to save him. At that time, all we knew is that he was seriously ill with hepatitis B and tuberculosis. While Guantanamo authorities deny it, he claims he is not receiving adequate medical care. Eyewitness accounts from the U.S. prison confirm his charges.

His attorney wrote the following at The Guantanamo Blog last Sunday:

After I received the distressing news from Mr. Al-Ghizzawi that a doctor at the base has informed him that he has AIDS I sent an email to the government attorney who has been (mis)handling Mr. Al-Ghizzawi's case. I asked him if he could confirm for me whether or not Mr. Al-Ghizzawi has AIDS. Here is his response:

"We are not privy to the particulars of what your client may have been told by his doctor, if anything, but Guantanamo provides high-quality medical care to all detainees."

And so there you have it.... this criminal government will not deny the doctors diagnosis... (which in and of itself is telling) instead they provide an unresponsive answer...of course if it is true that Al-Ghizzawi has AIDS it means that he acquired the disease while at the base because the military claimed it did a complete physical when Al-Ghizzawi arrived and the ONLY condition he suffered from at that time was Hepatitis B....so I guess there is good reason why they don't want to confirm the diagnosis.

HIV transmission in U.S. prisons has long been a humanitarian disaster largely ignored in the press. University of California, San Francisco researchers have an excellent summary of research on this. But they attribute HIV transmission to homosexual sex, voluntary or via rape. (They estimate from 9 to 20% of federal inmates are subjected to homosexual rape.) -- But Al-Ghizzawi claims his infection was caused by medical tests. And the prison authorities are stonewalling on any more information. Just what the hell is happening at Guantanamo? Are experiments being done on prisoners there?

It wouldn't be the first time such experiments were done on prisoners without their consent. Jonathan Moreno, a well-respected academic, and former Clinton appointee to the Advisory Committee on Human Radiation Experiments, wrote a book that summarizes some of what is known about this sinister and repressed history.

I have no evidence the U.S. government is involved in any experimentation at Guantanamo, but if one is even barely aware of the deadly history of U.S. involvement in secret experimentation, from MKULTRA to Edgewood Arsenal, from the Tuskegee Syphilis Experiment to Willowbrook, then you couldn't help but wonder, is it possible the U.S. has been conducting medical experiments at Guantanamo?

I bet you never heard of the Willowbrook scandal. It was a doozy.

The Willowbrook study [mid-1950s to early 1970s] involved infecting mentally retarded children with a Hepatitis virus to study the progression of the disease and to test vaccinations that were being developed at the time. Due to overcrowding, children were denied entrance to the Willowbrook State Mental Hospital [in New York] unless parents enrolled their children into the less-crowded hepatitis ward. This practice did not allow for voluntary participation since there were scarce resources available to care for severely retarded children which limited the treatment options from which parents could select. The institution's director was in charge of the study and conducted subject recruitment by sending a misleading informed consent to parents that included an exaggeration of the study benefits.

So, maybe my questioning of how Mr. Al-Ghizzawi was infected with HIV isn't so tinfoil after all. At the very least, his case is one of criminal negligence and cover-up.

Meanwhile, Jose Padilla was sentenced to 17 years and 4 months for supposedly aiding a jihad cell. While he was never tied to any violent activities, and charges that he was planning to set off a "dirty bomb" in an a U.S. city were ditched after the government realized it needed to drop the "enemy combatant" label they'd given him, he was sentenced with no credit for time served. And what did that "time" look like?

The Christian Science Monitor states that Padilla was subjected to "isolated military detention without charge for nearly four years and subjected... to harsh interrogation techniques."

Padilla's cell measured nine feet by seven feet. The windows were covered over… He had no pillow. No sheet. No clock. No calendar. No radio. No television. No telephone calls. No visitors. Even Padilla's lawyer was prevented from seeing him for nearly two years. (Link to CSM quote from Alternet)

Padilla himself claims that during the period of his confinement he was subjected to severe sensory deprivation and isolation, in addition to suffering from sleep deprivation, extreme temperatures, stress positions, and injections of mind-altering drugs. Doctors who have examined him agree that his treatment caused him serious mental harm.

The question is cui bono? Who benefits? Certainly Padilla's treatment represents an attack on U.S. traditional jurisprudence norms, a conclusion ably represented in an article on the sentencing by Jacob Hornberger:

What happened to Padilla continues to hang over the head of every independent-minded American like a Damocles sword....

The reason that the Padilla case is so ominous for the American people is that it established that the government now wields the post-9/11 power to ignore and violate all of those constitutional protections, as long as it is the Pentagon that is doing the ignoring and the violating.

In other words, the Padilla case did not wipe out these constitutional protections as far as the police are concerned. But it does stand for the proposition that all of these constitutional protections are wiped out insofar as the military is concerned. And this despite the fact that the Bill of Rights expressly applies to the entire federal government, not just the non-military parts of the federal government.

While it's possible that the government continues to do experiments on incarceration that involves psychological torture, like sensory deprivation and sensory overload, isolation, use of drugs, etc. -- in fact, this seems likely -- it's certain that he represents a test case on how to subject a human being, in this case a U.S. citizen, to total government control, to break a person's body and will without any restraint of law or morality.

While Canada can't make up its mind whether the United States belongs on a list of nations that torture...

Amnesty International Canada... says it has ample evidence that prisoners are abused both in U.S. and Israeli jails....

"When it comes to an issue like torture, the government's main concern should not be embarrassing allies," Alex Neve, the group's secretary-general, told Reuters. The U.S. embassy did not immediately respond to a request for comment.

Under "definition of torture," the document [part of a training course manual on torture awareness given to Canadian diplomats] lists U.S. interrogation techniques such as forced nudity, isolation, sleep deprivation and blindfolding prisoners.

It also mentions the U.S. detention facility at Guantanamo Bay in Cuba....

Down the rabbit hole, Alice got lost. But, in the end, she found herself and was returned to her comfortable home. We just keeping getting more lost.