Torture and Detention

Make It So

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by hilzoy From the LATimes: "The Obama administration is preparing to admit into the United States as many as seven Chinese Muslims who have been imprisoned at Guantanamo Bay in the first release of any of the detainees into this country, according to current and former U.S. officials. Their release is seen as a crucial … Read more

The Limits of “Effectiveness”

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by publius Via Andrew Sullivan, Steve Chapman raises a really good point – there’s simply no way that the effectiveness of torture can solely justify its use.  And I think he poses a difficult logical problem for torture supporters. Chapman notes that if “effectiveness” is all we care about, any form of torture would necessarily … Read more

Learned Helplessness

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by hilzoy I wanted to highlight a point from yesterday's NYT article on the decision to use torture: "By late 2001, the agency had contracted with James E. Mitchell, a psychologist with the SERE program who had monitored many mock interrogations but had never conducted any real ones, according to colleagues. He was known for … Read more

A Perfect Storm

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by hilzoy The NYT has a damning piece about the decision to use torture: "In a series of high-level meetings in 2002, without a single dissent from cabinet members or lawmakers, the United States for the first time officially embraced the brutal methods of interrogation it had always condemned. This extraordinary consensus was possible, an … Read more

Prof. James Horne On The Memos

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by hilzoy When discussing sleep deprivation, the memos released last Thursday cite the work of Dr. James Horne in support of the claim that sleep deprivation for up to 180 hours is not torture. (See here, pp. 35-40.) I wrote to Dr. Horne and asked him whether he would like to respond to this use … Read more

More Things That Are Missing

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by hilzoy

A couple of other things that are missing from the torture memos:

First, the memos cite various legal precedents for the definition of torture. They are particularly fond of Mehinovic v. Vuckovic, which involved "a course of conduct that included severe beatings to the genitals, head, and other parts of the body with metal pipes and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of 'Russian Roulette'." (p. 24; the details of this case are repeated on four separate occasions in this memo alone, like an incantation.)

Isn't it strange, then, that not a single one of the cases in which the United States has prosecuted people for waterboarding turns up in these memos? You'd think they might be apposite. Oddly enough, though, Steven Bradbury didn't think to include them.

Second: As I noted last night, under the US Code, an important issue in determining whether something counts as producing "severe mental pain or suffering" is whether it produces "prolonged mental harm". In discussing this question, especially with regard to sleep deprivation and waterboarding, Steven Bradbury spends a lot of time discussing the scientific literature on these topics. 

And yet, once you think about it, he had a much better source of information available to him. These memos were written in May, 2005. The CIA had been using these "methods of interrogation" for nearly three years. Moreover, the memos fall all over themselves describing the repeated psychiatric evaluations that detainees are given: 

"Prior to interrogation, each detainee is evaluated by medical and psychological professionals from the CIA's Office of Medical Services ("OMS") to ensure that he is not likely to suffer any severe physical or mental pain or suffering as a result of interrogation." (p. 4)

Bradbury then quotes the OMS' guidelines:

"[T]echnique-specific advance approval is required for all "enhanced" measures, and is 'conditional on on-site medical and psychological personnel confirming from direct detainee examination that the enhanced technique(s) is not expected to produce "physical or mental pain or suffering"'. As a practical matter, the detainee's physical condition must be such that these interventions will not have lasting effect, and his psychological state strong enough that no severe psychological harm will result." (p. 4)

Moreover:

"Medical and psychological personnel are on-scene throughout (and, as detailed below, physically present or otherwise observing during the application of many techniques, including all techniques involving physical contact with detainees), and "[d]aily physical and psychological evaluations are continued throughout the period of [enhanced interrogation technique] use." (p. 5; square brackets in the original.)

With all those psychological workups having been conducted on CIA detainees over a period of nearly three years, one might think that the CIA, and specifically its Office of Medical Services, would have lots of information on whether or not the techniques under discussion actually did produce any "prolonged mental harm." And yet, strange to say, the memos don't mention any evidence at all about the effects of these techniques on CIA detainees*.

It's pretty strange that the CIA had all that data about the psychiatric effects of its interrogation techniques ready to hand, and yet no one mentions it.

Or then again, maybe not.

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Torture: The Bureaucracy In Action

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by hilzoy I will have a lot more to say about the torture memos later tonight. For now, though, I just want to echo this point by Andrew Sullivan, which is very, very important. He's contrasting the Bradbury memos from 2005 to the Bybee memo from 2002: "What is far more important and far graver … Read more

“Prolonged Mental Harm”

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by hilzoy As I noted in my last post, the US Code defines torture as an act that (among other things) is intended to produce "severe physical or mental pain or suffering", and defines "severe mental pain or suffering" as "prolonged mental harm" resulting from one of several types of act. Naturally, then, the torture … Read more

No One Could Have Predicted…

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by publius Bybee Memo (2002): [W]alling involves quickly pulling the person forward and then thrusting him against a flexible false wall.  You have informed us that the sound of hitting the wall will actually be far worse than any possible injury[.]  The use of the rolled towel around the neck also reduces any risk of … Read more

Something Is Missing

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by hilzoy I'm still digesting the torture memos, and probably won't say anything comprehensive about them tonight. I did, however, want to flag one thing that is missing.  The US Code defines torture as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or … Read more

Time to Become a Card-Carrying Member

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by publius I'm still digesting the torture memos and commentary, but Glenn speaks the truth here: Finally, it should be emphasized — yet again — that it was not our Congress, nor our media, nor our courts that compelled disclosure of these memos.  Instead, it was the ACLU's tenacious efforts over several years which single-handedly … Read more

The Obvious Comparison

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by hilzoy "You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects.(…) As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a … Read more

Redactions

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by hilzoy I am presently reading through the torture memos that the Obama administration released today. I will comment on them when I have had a chance to work through and digest them. I do want to say one thing now, though. Yesterday, various news outlets began reporting that these memos would be released. The … Read more

Good. And Not A Moment Too Soon.

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by hilzoy From the NYT: "The Central Intelligence Agency announced on Thursday that it will no longer use contractors to conduct interrogations, and that it is decommissioning the secret overseas sites where for years it held high-level Al Qaeda prisoners. In a statement to the agency's work force, the director, Leon E. Panetta, said that … Read more

Release The Torture Memos

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by hilzoy Newsweek: "As reported by NEWSWEEK, the White House last month had accepted a recommendation from Attorney General Eric Holder to declassify and publicly release three 2005 memos that graphically describe harsh interrogation techniques approved for the CIA to use against Al Qaeda suspects. But after the story, U.S. intelligence officials, led by senior … Read more

A Big Day in Bagram

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by publius Good news on the national security front – a federal district court granted habeas rights yesterday to certain detainees being held at Bagram Airfield in Afghanistan (pdf here).  In doing so, the court applied – and relied on – the Supreme Court’s landmark Boumediene case from last year.  (For those interested, hilzoy has … Read more

Al-Marri Will Face Trial

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by hilzoy Good news: "Federal prosecutors are preparing to charge Ali Saleh Kahlah al-Marri with providing material support to al-Qaeda terrorists in a groundbreaking move that would put the alleged sleeper agent under the jurisdiction of the U.S. court system, according to sources familiar with the issue. Indicting Marri in a federal court marks a … Read more

Habeas Rights At Bagram

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by hilzoy

From last Friday's NYT:

"The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.

In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release. (…)

The closely watched case is a habeas corpus lawsuit on behalf of several prisoners who have been indefinitely detained for years without trial. The detainees argue that they are not enemy combatants, and they want a judge to review the evidence against them and order the military to release them.

The Bush administration had argued that federal courts have no jurisdiction to hear such a case because the prisoners are noncitizens being held in the course of military operations outside the United States. The Obama team was required to take a stand on whether those arguments were correct because a federal district judge, John D. Bates, asked the new government whether it wanted to alter that position.

The Obama administration's decision was generally expected among legal specialists. But it was a blow to human rights lawyers who have challenged the Bush administration's policy of indefinitely detaining "enemy combatants" without trials."

I am very much of two minds about this. I explain why below the fold.

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Free The Uighurs

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by hilzoy Yesterday, a federal appeals court ruled (pdf) that it cannot order the release of the seventeen Uighurs who remain at Guantanamo, and that no court has the power to do so. The case will presumably be appealed to the Supreme Court. But there is absolutely no reason for President Obama to wait on the … Read more

State Secrets: Updates

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by hilzoy Two bits of welcome news. First, Sens. Leahy, Kennedy, and Specter have reintroduced the State Secrets Protection Act (S. 417). Thomas doesn't have the text yet, but Leahy's press release claims that "the legislation was initially proposed in the 110th Congress", which sounds as though it is the same bill described here. That bill states … Read more

Ask Dr. Rendition!

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by hilzoy Since the publication of the LA Times story about rendition yesterday, I've noticed some confusion about the topic. So Dr. Rendition will try to answer your questions. Q: What is rendition?  A: Rendition is the act of transferring a person into a different jurisdiction.  Q: "It occurs to me that this more benign definition of … Read more

The LA Times On Rendition

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by hilzoy The LA Times has an article today called "Obama preserves renditions as counter-terrorism tool": "The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba. But even while dismantling these programs, President Obama … Read more

There Are No Files, Part 2

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by hilzoy

This morning, I read this declaration in a GTMO case (pdf). It's very much worth reading: the author, LTC Darrel Vandeveld, is a member of the Reserve JAG Corps who has served in Iraq and Afghanistan. He was the lead prosecutor against a detainee, Mohammed Jawad, until he resigned last September. After spending over a year on the case, he became convinced that the government had no good case against Jawad, that Jawad had been badly mistreated and was suffering serious psychological harm, and that continuing to hold him was "something beyond a travesty." (p. 1) That's why he wrote the declaration in question, in support of Jawad's habeas petition.

Jawad was between fifteen and seventeen when we took him into custody. That was more than six years ago.

I wasn't reading this because I thought it might have something to do with last night's post on files. Imagine my surprise, then, when I found the following, on p. 3 (note: OMC-P is "Office of Military Commissions — Prosecutions"; CITF is "Criminal Investigative Task Force"):

"7. It is important to understand that the "case files" compiled at OMC‐P or developed by CITF are nothing like the investigation and case files assembled by civilian police agencies and prosecution offices, which typically follow a standardized format, include initial reports of investigation, subsequent reports compiled by investigators, and the like. Similarly, neither OMC‐P nor CITF maintained any central repository for case files, any method for cataloguing and storing physical evidence, or any other system for assembling a potential case into a readily intelligible format that is the sine qua non of a successful prosecution. While no experienced prosecutor, much less one who had performed his or her duties in the fog of war, would expect that potential war crimes would be presented, at least initially, in "tidy little packages," at the time I inherited the Jawad case, Mr. Jawad had been in U.S. custody for approximately five years. It seemed reasonable to expect at the very least that after such a lengthy period of time, all available evidence would have been collected, catalogued, systemized, and evaluated thoroughly — particularly since the suspect had been imprisoned throughout the entire time the case should have been undergoing preparation.

8. Instead, to the shock of my professional sensibilities, I discovered that the evidence, such as it was, remained scattered throughout an incomprehensible labyrinth of databases primarily under the control of CITF, or strewn throughout the prosecution offices in desk drawers, bookcases packed with vaguely‐labeled plastic containers, or even simply piled on the tops of desks vacated by prosecutors who had departed the Commissions for other assignments. I further discovered that most physical evidence that had been collected had either disappeared or had been stored in locations that no one with any tenure at, or institutional knowledge of, the Commissions could identify with any degree of specificity or certainty. The state of disarray was so extensive that I later learned, as described below, that crucial physical evidence and other documents relevant to both the prosecution and the defense had been tossed into a locker located at Guantanamo and promptly forgotten. Although it took me a number of months ‐‐ so extensive was the lack of any discernable organization, and so difficult was it for me to accept that the US military could have failed so miserably in six years of effort ‐‐ I began to entertain my first, developing doubts about the propriety of attempting to prosecute Mr. Jawad without any assurance that through the exercise of due diligence I could collect and organize the evidence in a manner that would meet our common professional obligations."

Its description of the lack of GTMO case files is not even close to being the most important part of this declaration, which is worth reading in its entirety (it's only 14 pages long, and quite well-written.) It just makes me angry when an anonymous "former senior official" can say that when the Obama administration claims that there are no case files, it is just "'backpedaling and trying to buy time' by blaming its predecessor." That "former senior official" is counting on the fact that most people have no idea whether there are case files on GTMO detainees, and thus no idea who is telling the truth. So s/he thinks that s/he can say anything, and who's to say that s/he's wrong? 

That makes me angry. Not nearly as angry a lot of other things about this case, some of which I've put below the fold, but it's the only one I can do something about.

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There Are No Files

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by hilzoy From the Washington Post: "President Obama's plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials — barred until the inauguration from examining classified material on the detainees … Read more

No More Extraordinary Rendition

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by hilzoy In comments, CharlesS notes a section of one of Obama's executive orders that I somehow missed. (I sort of zoned out once it started in on the composition of committees; this was clearly a mistake.) This order establishes a Special Interagency Task Force one of whose missions is: "(ii)  to study and evaluate … Read more

More On Today’s Executive Orders

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by hilzoy Now that I've actually read Obama's Executive Orders on detention (1, 2, 3, 4; the 4th is a pdf), I wanted to highlight a few more points. First: "The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus." This was expected, but it's immensely important nonetheless. It's … Read more

Executive Orders

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by hilzoy TPM Muckraker: "President Obama moments ago signed an executive order closing the Guantanamo detention facility within a year. The move makes good on a key Obama campaign promise. Obama also signed two other orders, reviewing military trials of terror suspects, and banning the harshest interrogation methods. After signing, Obama said: "The message we … Read more

Some Facts For Obama To Consider

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by hilzoy (1) According to Article II, Section 3 of the Constitution, the President "shall take Care that the Laws be faithfully executed".  (2) According to Article VI of the Constitution, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the … Read more

“Return To Terrorism”

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by hilzoy Yesterday, a Pentagon spokesman said: "I can disclose with you the fact that we have a new — we have updated recidivism numbers of people who have been at Guantanamo, and these are the latest numbers we have as of the end of December. And it shows a pretty substantial increase in recidivism. … Read more

Closing Guantanamo: Part 2

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by hilzoy From the AP story on closing Guantanamo: "What remains the thorniest issue for Obama, the advisers said, is what to do with the rest of the prisoners — including at least 15 so-called "high value detainees" considered among the most dangerous there. Detainees held on U.S. soil would have certain legal rights that they were … Read more

Closing Guantanamo: Part 1

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by hilzoy From the AP: "President-elect Barack Obama is preparing to issue an executive order his first week in office — and perhaps his first day — to close the U.S. military prison at Guantanamo Bay, according to two presidential transition team advisers. It's unlikely the detention facility at the Navy base in Cuba will be closed anytime soon. In an interview last weekend, Obama … Read more

Not The Night Of The Long Knives

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by hilzoy

The NYT asked Charles Fried, Jack Balkin, and Dahlia Lithwick "how the incoming administration should deal with the legal legacy of the war on terrorism", or, more briefly, whether people who authorized torture, rendition, illegal surveillance, and so forth should be put on trial. As I've said before, I think they should. As Dahlia Lithwick says:

"The Bush administration made its worst errors in judgment when it determined that the laws simply don’t apply to certain people. If we declare presumptively that there can be no justice for high-level government officials who acted illegally then we exhibit the same contempt for the rule of law."

This means, of course, that I disagree with Charles Fried*, who writes::

"There are those who will press for criminal prosecutions, but this should be resisted.

It is a hallmark of a sane and moderate society that when it changes leaders and regimes, those left behind should be abandoned to the judgment of history. It is in savage societies that the defeat of a ruling faction entails its humiliation, exile and murder.

In contrast, by turning away from show trials and from the persecution of even the worst of their past regimes’ miscreants, new democracies like Spain and South Africa showed that they had moved decisively beyond a politics of hate and revenge. To South Africa and its Truth and Reconciliation Commission compare the barbarism and desolation of Robert Mugabe’s Zimbabwe.

Think too of the succession of Roman emperors, of the Soviet Union of Lenin and Stalin, or of the night of the long knives when Hitler eliminated his closest associates and rivals. It is only an exaggeration to see the urge to criminalize our soon-to-be-former leaders, to make into courtroom drama the tragedy of the last eight years, as an extension of this same practice."

Question: does Charles Fried think that all criminal trials are like the Night of the Long Knives or the Stalinist purges? Did he think this while he was Solicitor General? Does he think that in our effort to move beyond the barbarism of Mugabe's Zimbabwe, we should stop trying thieves and rapists, and punish murderers without giving way to the 'hate and revenge' of the criminal justice system? Or is it only politicians whose trials cannot be distinguished from the 'humiliation, exile and murder' of the vanquished?

Fried goes on to concede that "ours would not be Stalin-type show trials, but they would have a kind of absurdity distinctive to our own over-lawyered culture." They would have all sorts of procedural intricacies, which he details at some length. Personally, I think that all these things — subpoenas, depositions, discovery, motions for this and that — are among the things that distinguish a decent system of justice from the purges and barbarism Fried mentions. If they are too annoying for politicians to put up with, or too ludicrous to be useful, then we should change them across the board. If not — if they serve some useful purpose — then simply listing them in a way that makes them sound pettifogging and ridiculous is wrong.

Fried also tries to distinguish Cheney et al from ordinary criminals:

"But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders. (…)

If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all."

I can see the difference between Hitler and Dick Cheney. I can also see the difference between Hitler and a shoplifter. That does not mean that I do not think that the shoplifter should be punished for his crime. 

More to the point, it is possible to com
mit crimes for comprehensible purposes. Women sometimes kill husbands who beat them, seeing no other way out. People steal to buy their children food or medicine. The fact that in so doing they show an "insufficient sense of moral restraint" is not relevant to the question whether they committed murder or theft.

If Bush and Cheney's motives are in fact an excuse under criminal statutes, then they should get off (and, I would add, the statutes should be changed.) If not, I do not see why invoking their motives is relevant here. This is especially true since I would think that any government official who decided to violate the laws against torture would do so not to line her own pockets — torture is not normally lucrative — but because she thought there was a good reason to do so. If we want to make torture by government officials legal, we should just go ahead and change the law. We should not pretend that it is illegal while excusing any torture performed for motives that any government officials who licenses torture will probably share.

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