Senate Amendment Calls for a Return to Bush-Era Torture

Originally posted by Jeffrey Kaye at Truthout

Ayotte amendment on secret torture overshadows abuse problems with "Army Field Manual."

An amendment by Sen. Kelly Ayotte (R-New Hampshire) to the current Defense Authorization Bill (SA 1068) now before Congress would roll back the 2009 Obama executive order against torture by re-establishing a secret "classified" set of interrogation techniques and then attaching them to the current "Army Field Manual" on human intelligence collection. But whether the amendment passes or not, the existence of certain interrogation techniques as used currently by the US military and intelligence services in the "Manual" do not comply with international norms, such as the Geneva Conventions.

A recent United Kingdom high court ruling on the use of hooding prisoners as a detention or interrogation technique indicated that use of any form of sensory obstruction, such as use of blindfolds, goggles or earmuffs, in place of hooding, which is outlawed, could only be temporary and "only for the time and extent necessary to preserve operational security." British military and security officers are directed not to work with governments that do not observe these rules.

Yet currently, use of goggles and earmuffs as a form of sensory deprivation used on prisoners is part of "Appendix M" of the "Army Field Manual." Their use is part of something called "Field Expedient Separation," and only to be used on "war on terror" detainees, who are deemed not subject to Geneva Conventions protections. Their purpose is beyond "operational" or security based and is meant to "Prolong the shock of capture ... and foster a feeling of futility."

The abusive use of sensory deprivation through use of blinding goggles and earmuffs is made even more explicit in the "Appendix M" discussion of the 12-hour time limitation on "field expedient separation," wherein such "limit on duration does not include the time that goggles or blindfolds and earmuffs are used on detainees for security purposes during transit and evacuation," i.e., the time limits concern use of goggles/blindfolds/earmuffs for purposes of psychological derangement. In addition, the technique cannot be applied without medical staff present, because of the dangers involved.

Sensory deprivation studies have shown that psychological symptoms, including panic and hallucinations, can be produced within hours of the application of such techniques.

A "Hooding" Substitute

In a "Statement on Hooding," written by the International Forensic Experts Group (IFEG) of the International Rehabilitation Council for Torture Victims and presented to the UK high court in its deliberations, hooding was described as "a form of torture and/or cruel, inhuman and degrading treatment or punishment (CIDT) [recognized] by a number of international and regional human rights bodies," and "a form of sensory deprivation that is associated with a number of physical and psychological effects and also may have significant adverse legal consequences."

The effects include psychological symptoms such as anxiety and claustrophobia. Hooding also "increases the likelihood of severe physical pain, injury and subsequent disability as it increases an individual's vulnerability to other methods of torture by preventing the anticipation of harm such as kicks and punches and subsequent defensive response."

While the US "Army Field Manual" forbids the use of hooding, it appears to have merely substituted parallel forms of abuse, as Field Expedient Separation mimics the effects of hooding. Indeed, the IFEG notes, "Hooding in this statement also refers to other equivalent forms of sensory deprivation such as the use of goggles or blindfolds and earmuffs."

Dr. Vincent Iacopino, the lead author of the IFEG statement, told Truthout in an email, "Although the DoD [Department of Defense] may not consider the use of goggles and earmuffs as a form of sensory deprivation, the IFEG Statement does.... Since the IFEG Statement makes clear that the use of goggles and earmuffs is a form of sensory deprivation, equivalent to hooding, that constitutes CIDT and, under some circumstances, torture, it should be clear that we consider the DoD's use of goggles and earmuffs a form of CIDT and/or torture as well." (Emphasis added.)

Interestingly, when the "Army Field Manual" was being rewritten in 2005 and 2006, the procedures used in its "Appendix M," which also includes use of solitary confinement (isolation up to 30 days or more), sleep deprivation and manipulation of "environmental conditions, were initially meant to be included in a "secret annex" to the manual. Apparently, there are some in the military or intelligence services who wish the decision to make "Appendix M" public had never been made. In fact, there is no indication as to what the fate of this little known appendix would be should Ayotte's amendment pass.

Secret Torture and "Enhanced Interrogation"

There is little question that the proposed "classified annex" would mean a return to the "enhanced interrogation" torture (EIT) practiced by the Bush administration, including use of waterboarding, water dousing (induction of hypothermia), stress positions, extreme sleep deprivation, various forms of physical abuse, confinement in a box, and more. Sen. Lindsay Graham, one of three Republican senators co-sponsoring the Ayotte amendment, hinted as much in a November 11 article at the National Review where he labeled President Obama's executive order stopping the EITs a "major mistake."

Graham called the EITs "consistent with our national values," and lauded the fact they "remain unknown to our enemies." (In fact, the EITs were later exposed and are as available online as the "Army Field Manual" is. See here and here.) But some veteran interrogators and a number of former military officers have expressed their opposition to Ayotte's amendment, this despite the fact that Ayotte ties the new secret interrogation rules to use by Obama's High-Value Interrogation Group (HIG), a fact little mentioned in press accounts.

Former interrogator Matthew Alexander, author of "How to Break a Terrorist," told Truthout in an email exchange that he was unaware of any secret annex on interrogation related to the HIG. Additionally, he added,  "I'm against a secret annex and sensory deprivation outside of transport," he said, adding he believes "more, in-depth cultural training [of interrogators] is needed to eradicate prejudice."

Alexander noted, "I have been searching for a Muslim interrogator in the Army for five years and have yet to find one (compared to WW II where about 70% of interrogators were ethnic Americans - Japanese, German, Italian, Austrian, etc.)," noting he supports an "emphasis on what is now being called the Informed Interrogation Method, which Ali Soufan has advocated."

In an exchange of op-eds with Mr. Alexander at The New York Times in January 2010, Sen. Dianne Feinstein indicated that the Obama administration was reviewing the varied complaints against "Appendix M." No public result of this review was ever released and a recent query to Senator Feinstein's office by Truthout regarding the fate of the review was not answered.

What Kind of Standard Is the "Army Field Manual"?

While the Ayotte amendment represents an appetite by some in government to return to a more unbridled form of torture, the current "Army Field Manual" is not "a respected standard that put an end to torture as an interrogation practice," as it was described recently in a column opposing the Ayotte amendment by Rev. Richard Killmer of the National Religious Campaign Against Torture (NRCAT). In a recent emailing to supporters, also opposing Ayotte's amendment, Physicians for Human Rights (PHR) referred to the "Army Field Manual" as the "gold standard" for interrogation.

Yet, both NRCAT and PHR have openly criticized the "Army Field Manual" and its "Appendix M" at other times in the past (see here and here), as have other human rights groups, including Human Rights First, Center for Constitutional Rights, Amnesty International, and others. It is an indication of how far the interrogation discussion has drifted to the right that criticism of the manual has been dropped in order to defend it against a likely return to the days of secret interrogation techniques used by the Bush/Cheney White House, DoD and the CIA.

Kathleen Long, a spokeswoman for the Senate Armed Services Committee, told Truthout, "We expect strong opposition to the amendment" in the Senate. Senator Ayotte has complained that her critics do not notice that any proposed classified techniques stemming from her amendment must abide by the laws against torture, including those in the UN Convention Against Torture treaty and the 2005 Detainee Treatment Act. But these laws have been interpreted in such a fashion that the definitions of torture and cruel, inhumane and degrading treatment have been eviscerated from their original meanings.

Dr. Stephen Miles, professor and Maas family endowed chair in bioethics, Center for Bioethics at the University of Minnesota, and a noted anti-torture author and activist, told Truthout, "The Army Field Manual is not an authoritative reference work on torture. The United States has adjusted its definitions of terms in international law to make its practices appear to comply with international law even in instances where we have called such acts 'torture' or unacceptable (i.e., cruel, inhuman or degrading treatment or punishment) when practiced by other nations. The United States is out of compliance with numerous conventions pertaining to the treatment of prisoners."

This work by Truthout is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.

House Judiciary Committee Releases Bybee Testimony on OLC Memos

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

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

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

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

Torture Lawyer Jay Bybee Confirms CIA Use of Illegal Interrogation Techniques

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

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

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

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

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

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