Washington Post Helps JPRA Cover Up Complicity in Torture Program

Originally posted at FireDogLake

A Washington Post article by Peter Finn and Joby Warrick has made a big splash, reporting that a memorandum from Joint Personnel Recovery Agency to DoD General Counsel in July 2002 warned that "torture" would produce "unreliable information."

However, we cannot conclude from this that JPRA was against the use of coercive interrogation. For one thing, as I will show, JPRA was an enthusiastic proponent of spreading SERE techniques into the operational realm. Second, even the caveats about the use of torture are supplemented by recommendations of interrogation techniques that amount at least to cruel, inhumane, and degrading treatment (outlawed by treaty and domestic law, as much as torture), if not torture itself.

One comes away from the Washington Post article with the impression it was the consequence of a planned leak, probably by JPRA or someone close to the Pentagon, seeking to cover up the JPRA's complicity in the torture program. For one thing, the revelations from the memo are not new; they were already revealed in the text of the recently released Senate Armed Service Committee report on detainee abuse. And then, consider the portion of the leaked memo, “Operational Issues Pertaining to the Use of Physical/Psychological Coercion in Interrogation," that the Washington Post did not bother to report.

CONCLUSION: The application of extreme physical and or psychological duress (torture) has some serious operational deficits, most notably, the potential to result in unreliable information. This is not to say that the manipulation of the subject's environment in an effort to dislocate their expectations and induce emotional responses is not effective. On the contrary, systematic manipulation of the subject's environment is likely to result in a subject that can be exploited for intelligence information and other national strategic concerns.

"Exploited" for not just "intelligence information," but "other national strategic concerns"? Hmmm... Perhaps this refers to the attempt to use torture to produce false confessions about supposed links between the perpetrators of 9/11 and Saddam Hussein.

In any case, JPRA, an organization whose supposed purpose is to be "the Department of Defense’s (DoD) executive agent for personnel recovery... responsible for coordinating and advancing joint personnel recovery capabilities," was deeply implicated as a primary actor in the implementation of the torture program. You wouldn't know this by reading the Washington Post article, which quotes former JPRA chief of staff, Daniel Baumgartner as saying "the agency 'sent a lot of cautionary notes' [to DoD] regarding harsh techniques.

"There is a difference between what we do in training and what the administration wanted the information for," he said a telephone interview yesterday. "What the administration decided to do or not to do was up to the guys dealing with offensive prisoner operations. . . . We train our own people for the worst possible outcome . . . and obviously the United States government does not torture its own people."

One could contrast this sanguine picture of a passive government bureaucracy meaning to do well with Lt. Col. Baumgartner's attachment of the JPRA document, Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees (undated), attached to the same memorandum Baumgartner sent to the Office of the Secretary of Defense General Counsel on July 26, 2002, which included the supposed warning memo published by the Washington Post.

In other JPRA materials, techniques designed to achieve these goals [i.e., "establish absolute control, induce dependence to meet needs, elicit compliance, shape cooperation"] include isolation or solitary confinement, induced physical weakness and exhaustion, degradation, conditioning, sensory deprivation, sensory overload, disruption of sleep and biorhythms, and manipulation of diet. Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees. [p. 9, footnote 56]

The Washington Post article failed to note that there were three attachments to the July 26 memo from JPRA to DoD General Counsel. One was the attachment posted by the Washington Post ("Operational Issues"), one was the Physical Pressures document just quoted. The third attachment was a memorandum written by SERE psychologist Jerald Ogrisseg, "Psychological Effects of Resistance Training."

I've written elsewhere on the Ogrisseg memo. In this work, he describes the statistics he gathered that demonstrated that SERE training was almost never harmful to its participants. That is not an accurate conclusion by Ogrisseg, and the published research using experiments on SERE trainees shows dramatic disruption of physiological processes by a majority of recruits undergoing SERE training. A study published in the June 2000 edition of Special Warfare noted:

In some cases, the changes noted among the trainees were greater than the changes noted in patients undergoing heart surgery....

Changes in testosterone levels were similarly remarkable: In some cases, testosterone dropped from normal levels to castration levels within eight hours.

The most salient aspect of the Ogrisseg paper lies in the fact that it ostensibly reported that waterboarding under SERE training conditions caused minimal long-term psychological effects. But the SASC report notes that Ogrisseg's report attributed that fact to "efforts the Air Force SERE program undertook to minimize the risk of temporary psychological effects of resistance training becoming long-term effects.... [mitigating] the risk of turning a "dramatic" experience into a "traumatic" experience.'"

It was Lt. Col. Baumgartner, so favorably quoted by the Washington Post, who forwarded all these memos to DoD, telling DoD's General Counsel:

"While there is not much empirical data on the long term effects of physical pressures used in SERE schools (which fall well short of causing 'grave psychological damage'), the psychological staff at the Air Force SERE school makes some interesting observations [] that suggest training techniques can be very effective in producing compliance while not causing any long term damage." Memo from Lt Col Baumgartner to Office of the Secretary of Defense General Counsel... July 26, 2002

So much for all the warnings Baumgartner says JPRA made!

JPRA Creates Experimental Torture Lab at Guantanamo

Whatever caveats some at JPRA had about SERE methods, and belying the betrayal by Baumgarter in the Washington Post article, by late summer 2002, JPRA was actively soliciting its services again to DoD. For instance, there was this this September 9, 2003 email from Col. Randy Moulton, Commander of JPRA to Col. Mike Okita and a redacted addressee (possibly "Admiral Bird," whom the text of the email addresses). Note, this was sent approximately two months after the so-called warning by JPRA:

There is a strong synergy between the fundamentals of both missions (resistance training and interrogation). Both rely heavily on environmental conditions, captivity psychology, and situation dominance and control. While I think this probably lies within DHS [Defense Human Intelligence Service, part of DIA] responsibility lines, recent history (to include discussions with DHS, USSOCOM, CIA) shows that no DoD entity has a firm grasp on any comprehensive approach to strategic debriefing/interrogation. Our subject matter experts (and certain Service SERE psychologist) have the most knowledge and depth within DoD on the captivity environment and exploitation. I think that JPRA/JFCOM needs to keep involved for reasons of TTP [Tactics, Techniques, and Procedures]/development and information sharing.

While Moulton said JPRA was not interested in active participation in the interrogations themselves, he apparently saw JPRA's new mission as one of "advice, assistance and observation" to the interrogation program, i.e., JPRA would brain-trust the operation. Apparently, Lieutenant General Robert Wagner at USFJCOM thought JPRA was overstepping their charter, and Moulton emailed him back, noting that formally Wagner was correct. JPRA was aware of the dangers of "crossing the Rubicon into intel collection." Moulton continued:

However there will be a need to be engaged in a symbiotic relationship with whatever entity is identified to manage the debriefing/interrogation program.... There may be a compromise position (my gut choice) whereby we could provide/assist in oversight, training, analysis, research, and TTP/development, while leaving actual debriefing/interrogation to those already assigned the responsibility."

In other words, in many ways and from the very first contact between JPRA and the General Counsel of DoD in December 2001, JPRA tried to position itself as indispensable experts for the torture project being initiated by higher-ups in the Bush Administration. Attempts to paint JPRA as some kind of bureaucratic opponent of the drive towards harsher and harsher interrogation techniques simply does not fit the facts. The appearance of occasional warnings about the effects of torture reflect either a minority opinion within JPRA (a possibility), or a bureaucratic reflex of covering for oneself that is apparent throughout the discussions about implementing the JPRA/SERE program in an operational fashion.

At Guantanamo itself, JPRA/SERE techniques were integral in establishing an experimental regime of harsh interrogation, i.e., torture. JPRA and other Special Operations officers wanted to teach SERE methods to interrogators and the members of the Behavioral Science Consultation Teams (BSCTs), which included psychologists and psychiatrists attached to the intelligence task force.

According to the Levin report, in August 2002, "COL John P. Custer, then-assistant commandant of the U.S. Army Intelligence Center and School at Ft. Huachuca, Arizona" conducted a review of interrogations operations at Guantanamo. Custer called Guantanamo "America's 'Battle Lab'" in the war on terror, and recommended combining FBI and military techniques to extract "information by exploiting the detainee's vulnerabilities." The "Battle Lab" label stuck, though some, like Colonel Britt Mallow, of the Criminal Investigative Task Force, objected.

MG Dunlavey and later MG Miller referred to GTMO as a "Battle Lab" meaning that interrogations and other procedures there were to some degree experimental, and their lessons would benefit DOD in other places. While this was logical in terms of learning lessons, I personally objected to the implied philosophy that interrogators should experiment with untested methods, particularly those in which they were not trained.

Later, Dunlavey denied using the term, and Miller testified he couldn't remember. Even so, within a week of Custer's report, BSCT members and Gitmo interrogators were flying off to Fort Bragg to attend a training in the use of SERE techniques, run by JPRA and Lt. Col. Louie "Morgan" Banks, then Chief Psychologist for U.S. Special Forces Command. SERE psychologist Gary Percival and two other JPRA instructors, Joseph Witsch and Terrence Russell, taught the course. This training included instruction in disruption of sleep cycles and daily schedules, invasion of male prisoners space by female interrogators, placing prisoners in solitary confinement, use of phobias ("fear of spiders, of the dark or whatever"), hooding, hitting, use of military dogs, etc.

Approximately a week after the end of training, in the latter part of September, one of the JPRA instructors, Joseph Witsch, was having second thoughts, which he expressed in a memo to Col. Moulton and Lt. Col. Baumgartner, as well as leadership at Special Operations Command:

I believe the techniques and tactics that we use in training have applicability. What I am wrestling with is the implications of using these tactics as it relates to current legal constraints, the totally different motivations of the detainees, and the lack of direction of senior leadership within the [U.S. Government] on how to uniformly treat detainees. We are now attempting to educate lower level personnel in DoD and OGAs [other governmental agencies] with concepts and principles that are somewhat foreign to them and while it all sounds good they are not in a position nor do they have the depth of knowledge in these matters to effect change and do it in reasonable safety....

The handling of [Designated Unlawful Combatants] is a screwed up mess and everyone is scrambling to unscrew the mess ... If we want a more profound role in this effort we need to sell our capabilities to the top level people in the USG and not spend our time trying to motivate the operators at the lower levels to sway their bosses. This is running the train backwards and that is a slow method to get somewhere. There are a lot of people in the USG intelligence community that still believe in the old paradigm and wonder just what we're doing in their business.

Implementing the Torture Program

Whether or not anyone heard Witsch's concerns, or those of others (Banks says that he, too, protested the use of SERE reverse-engineering, but his protest seems questionable, given his organizational role in the Gitmo training), on September 26, a high-level group of administration visitors arrived at Guantanamo, including Alberto Gonzales, David Addington, DoD General Counsel Jim Haynes, CIA General Counsel John Rizzo, and Assistant Attorney General, Criminal Division, Michael Chertoff. One record of their meetings has been handed down in the form of minutes, including presentation by BSCT personnel, and a discussion of "harsh techniques", sleep deprivation, hiding prisoners from the International Red Cross, videotaping prisoners and possible use of "truth serum." The experiment was well under way.

After the administration officials left, the decision was made to get approval for harsher interrogation methods similar to those taught by SERE.

According to MAJ Burney, the BSCT psychiatrist, "by early October there was increasing pressure to get 'tougher' with detainee interrogations but nobody was quite willing to define what 'tougher' meant.... MAJ Burney added that there was "a lot of pressure to use more coercive techniques" and that if the interrogation policy memo that LTC Phifer had asked him to write did not contain coercive techniques, then it "wasn't going to go very far."

On October 25, 2002, General James T. Hill, Commander at SOUTHCOM, forwarded the request to get "tougher" and use the proposed SERE techniques to the Joint Chiefs of Staff. While he worried about the legality of some of the techniques, particularly death threats, he urged the Chiefs to consider that he wanted "to have as many options as possible at my disposal."

The Joint Chiefs hesitated. They asked for official comment from the different services. The Air Force reported back: "some of these techniques could be construed as 'torture,' as that crime is defined by 18 U.S.C. 2340." The Navy responded more favorably, citing the need for better "counter-resistance techniques," but asked for "more detailed interagency legal and policy review." The Marine Corps balked. Some of the techniques (e.g., sensory deprivation, use of dogs, nudity, exposure to cold, 20 hour interrogations) "arguably violate federal law, and would expose our service members to possible prosecution." The Army also cited "significant legal, policy and practical concerns," noting the techniques probably violated Bush's presidential order regarding "humane treatment" of detainees, and wanted more legal review.

Captain Jane Dalton, the Legal Counsel to the Chairman of the Joint Chiefs of Staff, testified to the SASC that she informed General Richard Myers, Chairman of the Joint Chiefs of Staff, of the legal objections by the services. Myers would later say he didn't remember any objections. Dalton then informed DoD General Counsel William Haynes of the military's objections. He, too, would later testify that he was unaware of any objections, saw no memos to that effect.

Ultimately, General Myers, apparently at the behest of Haynes (who presumably was acting on behalf of Secretary of Defense Donald Rumsfeld) "quashed" Dalton's review. Asked about dismissing JCS Legal Counsel review of the request for use of SERE/JPRA interrogation techniques at Guantanamo, the Chairman of the Joint Chiefs of Staff stonewalled.

GEN Myers said that he had "no specific recollection" of discussing with CAPT Dalton her efforts to conduct an analysis of the October 11, 2002 GTMO request.... He said that while he "did not dispute" asking her to stop working on her analysis and acknowledged that Joint Staff records indicated that she did stop work on her analysis, he had "no recollection or doing so" and did "not recall anyone suggesting" to him that she stop her review.

Meanwhile, JPRA was already planning their next training exercise for Guantanamo interrogators. Guantanamo got a new commander, Major General Geoffrey Miller, and the battle over the use of interrogation methods shifted to the construction of an interrogation plan for Mohammed al Khatani, with the government obsessed with the need to "break the detainee and establish his role in the attacks of Sept[ember] 11,2001." Approval for the plan came from the White House (emphasis in original):

A November 14, 2002 email from the GTMO Staff Judge Advocate LTC Diane Beaver to CITF lawyer stated, "[c]oncerning 63 [Khatani] my understanding is that NSC has weighed in and stated that intel on this guy is utmost matter of national security... We are driving forward with support of SOUTHCOM. Not sure anything else needs to be said."

A great deal more needs to be said, but we will settle with this denouement for the present.

Rumsfeld, upset that action had not been taken on the October GTMO request for harsher techniques thundered, "I need a recommendation." On November 27, 2002, Haynes notified Rumsfeld that he had received the concurrence of Deputy Secretary of Defense Paul Wolfowitz, Undersecretary of Defense for Policy Doug Feith, and Chairman of the Joint Chiefs of Staff (CJCS) General Richard Myers for most of the JPRA/SERE techniques. It's not clear to what degree the Department of Justice's Office of Legal Council's August 1, 2002 (Bybee) memo played a role in the approval process. In any case, on December 2, 2002, Rumsfeld signed off on the GTMO interrogation plan. He couldn't restrain himself from adding one final flourish:

In approving the techniques, the Secretary added a handwritten note at the bottom ofthe memo that questioned one ofthe limitations in the JTF-GTMO request... In reference to "the use of stress positions (like standing) for a maximum of four hours," the Secretary wrote: "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?"

At last, the SERE reverse-engineered interrogation program, a hybrid of old CIA KUBARK interrogation strategies, especially the use of sensory deprivation, isolation, and debility, were joined to a haphazard group of SERE-originated techniques of varying levels of brutality, themselves gathered from a wide variety of historically derived torture techniques, from Nazi Germany, to the Soviet GPU, and the interrogation of American airmen by Chinese and North Koreans during the Korean War.

And behind it all was the Joint Personnel Recovery Agency. What motivated them? Were the primary actors really Special Forces or CIA, operating through JPRA? Or was it simply a case of a military bureaucracy run amuck, and a White House eager to use any tool at its command to justify policies of aggressive war and perpetuity of power? Hopefully, both investigations and criminal prosecutions of those who planned and implemented the torture program at high levels will bring us some answers.

The greatest obstacle to that lies in the fact that the responsibility for the crimes is spread throughout the Pentagon, intelligence agencies, and the Executive Branch, as high as the President and Vice President of the United States, the former Chairman of the Joint Chiefs of Staff, and a myriad of Cabinet officials and top government attorneys. The powers attached to these offices are formidable, and will seek to protect their own. Only exposure and wide protest over a lack of accountability will bring about the change this country needs, and the justice.

(Updated) Torture Trial Ends: Reflections on the Hamdan Verdict

Osama bin Laden's personal driver and bodyguard, who made the magisterial sum of $200 per month, 34-year-old Salim Ahmed Hamdan, who was held years without charges at Guantanamo Naval Base prison, has just been found guilty of lesser charges in the first of a series of planned "military commission" trials by the Bush Administration. Comprehensive news coverage of the Hamdan trial can be found at the Miami Herald.

Hamdan was found not guilty on two counts of conspiracy to foment terrorism in league with Al Qaeda. He was found guilty on five of eight charges of providing material support to terrorists. He has yet to be sentenced, and faces possible life imprisonment. In any case, the Bush Administration has already said that whatever the verdict or sentence, no "enemy combatant" will be released until the "war on terror" is over, i.e., until hell freezes over.

Hamdan's prosecution has been a key judicial and political football, ever since attorneys for Mr. Hamdan pressed his rights to challenge his detention in the courts. The struggle for his habeas rights went up to the Supreme Court, where the court, in Hamdan v. Rumsfeld, upheld the rights of prisoners facing Bush's jerry-rigged military commissions. The ruling meant Bush and the Pentagon had to go back to the drawing board to redo the commissions concept, which in the end meant years more of imprisonment for the detainees and a revamped military commission policy that didn't look all that different from the old one.

While the months and years unfolded, military prosecutors quit, and other military lawyers protested, culminating in the resignation last October of Colonel Morris Davis, the former prosecutor for the commissions, citing political bias and interference in the trials, and castigating the process for allowing the introduction of "evidence" produced by torture.

[Additional note: A commenter on the posting of this story over at Daily Kos notes that that "hearsay evidence is also admissible in these kangaroo courts, as well as coerced testimony and secret evidence." H/T Smintheus]

Torture and the Hamdan Trial

Hamdan is reported to have been subjected during the course of his incarceration to beatings, sleep deprivation, isolation, and sexual humiliation. The impact of this upon the substance of the "trial" -- the first such military commission trial since World War II -- became clear when Army psychologist Colonel L. Morgan Banks III was called to testify in secret session.

If the name seems familiar to my readers, it's because L. Morgan Banks was a member of the American Psychological Association's 2006 PENS task force on psychological ethics and national security. Banks was also Chief Psychologist of the Army's Survival, Evasion, Resistance, Escape (SERE) program, coming to Guantanamo to teach interrogation techniques in early 2003. We now know what kinds of techniques were being taught, e.g. "degradation tactics," "physical debilitation tactics," sensory deprivation, and demonstrating to the prisoner "complete control over victim's fate."

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).

We can only guess at what Banks testimony was. One assumes it had to do with the coercive interrogation and abusive conditions of detention suffered by Mr. Hamdan. The blanked out pages of Banks' testimony are a stark testimony to the failure of justice, and the contemporary practice of the U.S. government to allow testimony induced by torture, a practice that sets back American jurisprudence more than 300 years.

Responding to the Verdict

From today's Miami Herald story, as covered by Carol Rosenberg:

Salim Hamdan, 37, stood and listened with head bowed to an Arabic translation as he became the first man convicted at trial in the first U.S. war crimes tribunal since World War II.

He said nothing but wiped his eyes with his head scarf [An AP story says Hamdan openly wept at the verdict.]....

In finding Hamdan not guilty of two counts of conspiracy, the jury did not entirely accept the Pentagon's theory that the father of two with a fourth-grade education was a key cog responsible for al Qaeda mayhem culminating with the 9/11 terror attacks....

Defense lawyers derided the war court, called a military commission, as relying on federal agents' interrogations conducted from Afghanistan to Guantánamo without notifying Hamdan that he might be prosecuted and without benefit of a lawyer even in his second year here.

"In no other court in this country would the evidence be admissible," said retired Navy Lt. Cmdr. Charlie Swift, who called the trial "by no means transparent."

The Center for Constitutional Rights released a statement by Shayana Kadidal, Senior Managing Attorney at CCR, upon the release of the verdict:

Hamdan’s trial violated two of the most fundamental criminal justice principles accepted by all developed nations: the prohibition on the use of coerced evidence and the prohibition on retroactive criminal laws.

The trial will not create finality – the decision to keep these cases out of the ordinary criminal courts will produce years of appeals over novel legal issues raised by the untested military commissions system. Even after those appeals are finished, the process will never be seen as legitimate by the world. This case was the first trial run of the commissions system, and the decision proves nothing except that the system itself should be scrapped. Terrorism-related crimes should be tried in the time-tested domestic criminal justice system, a system whose rules have been designed over the centuries with one goal: to seek out the truth.”

ACLU Executive Director Anthony Romero has declared the verdict a travesty:

Any verdict resulting from such a flawed system is a betrayal of American values. The rules for the Guantánamo military commissions are so flawed that justice could never be served. From start to finish, this has been a monumental debacle of American justice. The judgment against Hamdan undoubtedly will be challenged in legitimate courts, but there is no appeal from the judgment of future generations. This system was devised to permit the prosecution of alleged wrongdoing by detainees, while continuing to cover up the wrongdoing by government interrogators. Trials that are shrouded in secrecy and tainted by coercion are the very antithesis of American justice.

The Bush White House, of course, sees things differently:

"We're pleased that Salim Hamdan received a fair trial," Deputy spokesman Tony Fratto said in a statement....

"The Military Commission system is a fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States or our interests," Fratto said. "We look forward to other cases moving forward to trial."

Reaction and the "War on Terror"

Typical reactions I have heard to the Hamdan case, as to the situation of the Guantanamo and other "enemy combatant" prisoners in general, include icy statements decrying pity, reminding us of the thousands killed on 9/11, or the U.S. soldiers killed in Iraq and Afghanistan. Others are less engorged with vengeance. Some feel more secure: a message has been sent to the "terrorists," where "terrorist" is a label for something vaguely evil they can't understand, a murky group of persecutors that simply want to destroy "our" way of life.

The vast majority, I think, simply care not to look as the very principles upon which our society is built are trampled into the ground by lordly politicians who play upon fear, and feed their own pockets with the profits of war. Perhaps it is too painful to observe such injustice, yet feel so impotent, so small against the great power of the state. But behind these societal principles are real people, many of them innocent of any charge. (Even as early as 2002, a secret CIA report concluded that as many of 1/3 of the detainees at Guantanamo were innocent.)

There's a myriad of other reactions: We must not get off topic. We have to elect Democrats. There's nothing I can do.

The spirit of the nation has already been shattered. More kangaroo military commissions trials are planned. And the government is only whetting its appetite for anti-democratic rule, outside the limits of justice and due process, honing its machinery of tyranny.

Make no mistake about it: the Hamdan verdict was a victory for the Bush Administration, and for those who would terminate whatever vestiges of moral and just government remain. I know that there are those who would oppose such a demolition of democratic society, many of them within the halls of government, perhaps even within the Pentagon and CIA itself. They will fight. But will they win?

Without public opinion strongly activated against them, the militarists and torturers will win. It's become a cliche, but Martin Niemöller's invocation against inaction in the face of tyranny has also become an omen, a warning with resonant overtones:

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.

UPDATE (3:25pm, PDT):

The following is a statement by Democratic presidential candidate Barack Obama on the Military Commission ’s guilty verdict in the Salim Hamdan case.

“I commend the military officers who presided over this trial and served on the hearing panel under difficult and unprecedented circumstances. They and all our Armed Forces continue to serve this country with valor in the fight against terrorism. That the Hamdan trial — the first military commission trial with a guilty verdict since 9/11 — took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice. And while it is important to convict anyone who provides material support for terrorism, it is long past time to capture or kill Usama bin Laden and the terrorists who murdered nearly 3000 Americans.”

The critique is mushy and oblique. It covers the fact that this tribunal verdict was completely tainted by the "dangerous flaws", and cannot be taken seriously. To serve on such a kangaroo court is not to "serve this country with valor", as the resignation of the Gitmo chief prosecutor last year made clear.

Meanwhile, here's McCain's slavish ode to Bush (in)justice:

The following is a statement by Republican presidential candidate John McCain on the Military Commission’s verdict:

“I welcome today’s guilty verdict in the first trial held under the Military Commissions Act (MCA). This process of bringing terrorists to justice has been too long delayed, but I’m encouraged that it is finally moving forward. I supported that legislation, which was a good-faith effort by Congress to meet the Supreme Court’s direction to establish a process to bring terrorist detainees to trial. Salim Ahmed Hamdan, a trusted confidante of Usama Bin Laden, was provided a full hearing of the charges against him and was represented by counsel who vigorously defended him. The jury found that the prosecution lawyers had proven, beyond a reasonable doubt, that Hamdan had aided terrorists by supplying weapons to Al Qaeda and Taliban forces in Afghanistan. This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice. The fact that the jury did not find Hamdan guilty of all of the charges brought against him demonstrates that the jury weighed the evidence carefully. Unlike Senator Obama who voted against the MCA and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.”

For all his puppet-like support to an inhumane and unjust process, McCain makes the point that Congress (with support of Democrats, btw, though McCain doesn't mention this) helped bring about this unconstitutional parody of jurisprudence.

Link

UPDATE II (9:25pm, PDT):

Scott Horton opines over at Newsweek:

"I would be very surprised if any of this conviction stands at the end of the day," says Scott Horton, a law professor specializing in human rights at Columbia University. "He was convicted of things that are not war crimes by a tribunal that has the power only to prosecute war crimes."

Marty Lederman makes similar but more nuanced point in a lengthy article, What Are the "War Crimes" For Which Hamdan Was Convicted?

UPDATE III (Sunday, 8/10, 12:15pm, PDT):

In a postscript to the Hamdan decision, the military jury, in what some in the mainstream press are calling a rebuke to the administration, sentenced Hamdan to 5-1/2 years. Since the ex-Al Qaeda driver has been in prison for over five years anyway, the effective sentence is only five months. The U.S. prosecutors had been asking the court to put Hamdan away for 30 years.

Some find in this relatively lighter sentence a repudiation by some in the military of Bush's military tribunal system. I tend to agree with an opinion piece yesterday in the New York Times, where William Glaberson wrote:

The verdict and the five-and-a-half-year sentence may not have been as severe as the government had hoped for, but it was a green light for a tribunal that the Pentagon plans to use to prosecute as many as 80 detainees, including five men charged as the plotters and coordinators of the Sept. 11 attack.

And that green light will stay on as long as the public impression is that the question of fairness in these star chamber "trials" -- with their secret testimony, their reliance on coerced testimony, their bogus insistence on "war crimes" that are not recognized by such by any other judicial institution, especially the use of "retroactive" laws -- is still a matter of sincere public debate. And that's precisely what the Times editorialist does, as Glaberson continues:

Nonetheless, the central question about the war crimes system remains unanswered after its first trial: Is it fair enough and open enough to meet Americans’ concept of justice?

The Hamdan verdict was not just, as the man should have never been held for years the way he was, subjected to torture, and tried for retrospectively implemented "laws". His sentence is as much a travesty as the tribunal itself. We will never know how Hamdan may have been judged and/or sentenced in a normal criminal court. Now, the Pentagon and the Bush Administration ponders what to do five months down the line with an "enemy combatant" who has served his term, even by Bush justice. Meanwhile, the wheels of judicial progress runs backward, as does the train of time itself, as the achievements of enlightenment democracy, justice, and penology unravel in the ambition to achieve American preeminence all over the world.

Did Gonzales Skip Out on SERE/Torture Training?

Also posted at NION

Bush Attorney General Alberto Gonzales is known to have served in the U.S. Air Force. Multiple sources describe his transfer to the U.S. Air Force Academy in Colorado Springs, where he spent two years, 1975-1977. According to the Wikipedia entry on the Academy, in those days SERE training was mandatory for all cadets between their 3rd and 4th years. But Gonzales never made it to his third year, per Wikipedia's anonymous author(s):

Prior to beginning his third year at the academy, which would have caused him to incur a further service obligation, he transferred to Rice University (Houston, Texas), where he was a member of Lovett College and earned a bachelor's degree in political science in 1979. He then earned a Juris Doctor (J.D.) degree from Harvard Law School in 1982. [Emphasis mine]

Now the further service obligation was probably another sign up, as he had already been in the Air Force four years, spending the first two years in Alaska as an enlisted man. But could the "further obligation" have been attending SERE training, known to be horribly onerous?

For those not familiar with SERE, the acronymn stands for Survival, Evasion, Resistance and Escape. A program that started with the Air Force, and had its roots in resistance to capture programs in the Cold War, it spread to the other services over the years.

One area of concentration in SERE's curriculum is resistance to interrogation, and is said to include teaching of and experience of the following:

extreme temperatures

waterboarding - being tied to a board with the feet higher than the head and having water poured into the nose

noise stress - playing very loud and dissonant music and sound effects. Recordings have been reported to include babies wailing inconsolably, cats meowing, and irritating music (including a record by Yoko Ono)

sexual embarrassment

religious dilemma - being given the choice of either seeing a religious book desecrated or revealing secrets to interrogators.

flag desecration

prolonged cramped or restrictive confinement

sleep deprivation

starvation

mock execution

overcoming food aversion (finding nutrition from alternate sources which might include insects, roadkill, dumpsters)

height/water/enclosed spaces

physical beating

"stress inoculation"

According to a document discovered by Mark Benjamin of Salon in a ACLU cache of released government documents:

A March 22, 2005, sworn statement by the former chief of the Interrogation Control Element at Guantánamo said instructors from SERE also taught their methods to interrogators of the prisoners in Cuba.

"When I arrived at GTMO," reads the statement, "my predecessor arranged for SERE instructors to teach their techniques to the interrogators at GTMO ... The instructors did give some briefings to the Joint Interrogation Group interrogators."

This is directly relevant to those in the American Psychological Association who are fighting to gain a moratorium on psychologist participation on interrogations, such as those at Guantánamo, and who maintain the leadership of the APA is pro-government and pro-torture, despite all their protestations and pretty, if legalistic, resolutions.

Why? Because the the Chief Psychologist of SERE at the time was Colonel Morgan Banks. Banks was also, and importantly, handpicked by then APA President Gerald Koocher to serve with five other members of the military (out of 10 members total) on the PENS committee of the APA, which in 2005-06 investigated the question of psychologist involvement in coercive interrogations and torture in Bush's "war on terror". It issued a report that formally condemned torture, and psychologist participation in same, but supported ongoing psychologist participation in national security interrogations.

For his part,Banks denied to the Washington Monthly introducing SERE techniques to Guantánamo interrogators, but then he may not have been "chief of the Interrogation Control Element". Nevertheless, he is

responsible for the training and oversight of all Army SERE Psychologists, who include those involved in SERE training and in the repatriation of former detainees and prisoners of war. He provides technical support and consultation to all Army psychologists providing interrogation support, and his office currently provides the only Army training for psychologists in repatriation planning and execution, interrogation support, and behavioral profiling.

By the way, thanks to the Kiley report (of then Army Surgeon General, the now-disgraced Kevin Kiley), we know that all Behavioral Science Consultation Team or BSCT members at Guantánamo must undergo SERE training. And, New York Times writers M. Gregg Bloche and Jonathan H. Marks had a source tell them that Banks was intimately involved in constructing interrogation policy at Guantánamo, just as he had been when stationed at Baghram Air Force Base in Afghanistan in 2002-2003:

We also learned from a Pentagon official that the SERE program's chief psychologist, Col. Morgan Banks, issued guidance in early 2003 for the "behavioral science consultants" who helped to devise Guantánamo's interrogation strategy (we've been unable to learn the content of that guidance).

And this is the man who was to dispassionately investigate and counsel on the role of psychologists in interrogations for the oh-so-liberal APA?

Which takes me back to Alberto Gonzales. He, of course, is infamous for counseling Bush for rejecting Geneva Convention protections to prisoners captured in the military actions against the Taliban and Al Qaeda. Here's a link to his memo of January 25, 2002.

Would Gonzales have as easily made his recommendation to allow torture if he himself had suffered, as many Air Force cadets of his age did, the torments of SERE training? Or if he had taken the training, and I cannot be sure he didn't undertake it, could that experience have hardened him, made him ready to revenge his sufferings on nameless men, women, and children he had never seen, who would undergo coercive interrogations because they were deemed "enemy combatants" in a new kind of war that Bush, Cheney, and Gonzales felt existed above national and international law?

We can't answer that question. But one thing for sure, the torture continues. The perpetrators escape accountability. And the nation sleeps in restless slumber, dreaming of American Idol fame, of Jack Bauer rescue and failure, and of invisible American and Iraqi corpses, hidden from the T.V. screens.

Gonzales's likely skipping of SERE training is like Bush's playing hooky from National Guard service. Both are symbols of American adolescent irresponsibility and hauteur: let the others do the dirty work, and screw everybody else.