The Torture Report Diary

The Torture Report, an initiative of the ACLU’s National Security Project, aims to give the full account of the Bush administration’s torture program. It will bring together everything we know from government documents, investigations, press reports, witness statements and other publications into a single narrative – one that is updated regularly and subject to critical review and improvement as it unfolds.

This Diary page will guide you through newly added sections, recent additions and changes and other relevant information about the Report.

"The Torture Report" Book Now Available in Print and Online

Two years ago, TheTortureReport.org was created in an effort to give a full account of the Bush administration's torture program, from its improvised origins to the systematized, lawyer-rationalized maltreatment of hundreds of prisoners in U.S. custody around the world.

Published serially online, the Report brought together information from government documents, official investigations, press reports, photographs, witness statements, testimonials, as well as vivid and meticulously-researched books in order to construct a single narrative about the torture program. The report's lead writer, Larry Siems, also reflected on new revelations and developments in the international struggle for accountability for the U.S.-led torture program.

Now, Siems and OR books have turned TheTortureReport.org into a new bookThe Torture Report: What the Documents say about America's Post 9/11 Torture Program — available in print and online.

In the book's introduction, Siems reflects:

Here's what I learned from writing TheTortureReport.org. The most senior members of the Bush administration, up to and including the President, broke international and domestic laws banning torture and cruel, inhuman, and degrading treatment. Worse, they had subordinates in the military and in civilian intelligence services break these laws for them. . . .

I am hardly the first to learn these things or reach these conclusions. Dozens of outstanding journalists, lawyers, human rights investigators, bloggers, and members of Congress have discovered and reported similar conclusions for years. But I have reached them for myself, doing what I believe every citizen of conscience ought to do at moments like these, reading the documents themselves.

I learned one more thing as well, something that anyone who reads the record will also discover.

Over and over again, men and women in Afghanistan and Iraq, in Guantánamo, in secret CIA black sites, in Langley, in the Pentagon, in Congress, and in the administration itself recognized the torture for what it was and objected, protested, and fought to prevent, and then to end, these illegal and ill-advised interrogations. While those who devised and oversaw the torture program insist their decisions were colored by the consciousness of impending danger, these men and women, who spent their days in far closer proximity to deadly threats, decried the cruel treatment as ineffective, shortsighted, and wrong. . . .

This sense of betrayal permeates the documents—not just of abstract values and principles, but of the women and men we commissioned to represent these values and principles to the world.

The ACLU's Alex Abdo, ACLU National Security Project Staff Attorney, recently spoke with Siems about his new book. Listen to the podcast here.
 

“Endgame”

Today we post the fourth and final installment of Chapter 5, titled “Endgame,” which brings us up to date on the stories of the three main characters in this chapter, Mohammed Al-Qahtani, Mohamedou Ould Slahi, and Ibn al-Sheikh al-Libi.

As we saw in the very first chapter of this report, no sooner had the Bush administration embarked on a course of systematic violations of the Torture Convention than veteran intelligence officers and military interrogators began to ask what would happen to those who had been treated in a way that undermined any possibility of reintroducing them into the legal system for prosecution. In the heavily redacted section of CIA Inspector General John Helgerson's 2004 Special Review from which this new section takes its title, the only unredacted passage reads:

The number of detainees in CIA custody is relatively small by comparison with those in U.S. military custody. Nevertheless, the Agency, like the military, has an interest in the disposition of detainees and particular interest in those who, if not kept in isolation, would likely divulge information about the circumstances of their detention.

This was one of the most chilling passages I came across early in my journey into the torture documents, with its insinuation that the fate of some detainees might be determined, at least in part, by “an interest” in preventing detainees from telling the stories of their mistreatment. Seen in the light of what has happened to Qahtani, Slahi, and al-Libi, it's absolutely haunting.

One of the essential elements—perhaps the essential element—of an accountability process is that those who have been subjected to torture and other human rights violations have the opportunity to tell their stories publicly and have them officially corroborated. Here, though a mounting body of evidence and even official acknowledgements confirm that these three men were tortured, none has had the chance even to be seen by the citizens of the country responsible for their brutalization, let alone heard. And one of them, at least, will never have that chance.

Article 14 of the Convention Against Torture states:

Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.

Article 2 and Article 4 of the Convention, meanwhile, instruct,

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

and

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

Torture is a criminal offense under U.S. civilian and military law, but not one person has been indicted in connection with the torture of Mohammed al-Qahtani and Mohamedou Ould Slahi. Nor is it clear how they might pursue the Convention-mandated restitution for their treatment. Last month a federal judge dismissed a lawsuit brought by Jose Padilla, whose ordeal we followed in Chapter 4, against Donald Rumsfeld, Jim Haynes, and other senior military officials for the abuse he endured at the U.S. naval brig in Charleston , South Carolina .

In his Order, Judge Richard Mark Gergel asserted that “at the time of Padilla's detention by the Department of Defense, there were few ‘bright lines' establishing controlling law on the rights of enemy combatants”; because Bush administration lawyers had produced memos deliberately contorting the definition of torture, “Padilla's rights at that time were unsettled.” Moreover, Gergel held,

The designation of Padilla as an enemy combatant and his detention incommunicado were made in light of the most profound and sensitive issues of national security, foreign affairs and military affairs. It is not for this Court, sitting comfortably in a federal courthouse nearly nine years after these events, to assess whether the policy was wise or the intelligence was accurate. The question is whether the Court should recognize a cause of action for money damages that by necessity entangles the Court in issues normally reserved for the Executive Branch, such as those issues related to national security and intelligence.

Two weeks after Gergel issued this opinion, protesters in Egypt stormed six buildings housing that country's State Security Investigations (SSI) bureau, whose officers carried out the torture of Ibn al-Sheikh al-Libi at the behest of the U.S. Alarmed by reports that the SSI was destroying its files, Egyptian citizens were determined to preserve, and publicize, the Mubarak government's massive record of torture and other human rights abuses—and they have begun to reconstruct the mounds of shredded documents they recovered. To our great shame, we may soon have a full accounting at least of the conspiracy to torture al-Libi, from a most unexpected source.
 

“Force Drift”

“Once the initial barrier against the use of improper force had been breached,” then-General Counsel for the U.S. Navy Alberto Mora cautioned in the second installment of Chapter 5, “a phenomenon knows as ‘force drift' would almost certainly come into play.” 

Today we post the third installment of Chapter 5, which takes its title from Mora's prescient warning.

“Force Drift” begins where “Marching Orders” left off: with Defense Secretary Donald Rumsfeld's January 15, 2003 memo rescinding his authorization for the abusive interrogation methods used to torture Mohamed al-Qahtani. This apparent victory for Mora and the many servicemen and women who protested the administration's unlawful methods was short-lived: the very day the rescission memo was issued, as we see in this chapter, GTMO interrogators were drawing up plans to subject another detainee, Mohamedou Ould Slahi, to a brutal and threat-laden “Special Interrogation.”

Within weeks the administration had produced a new secret legal opinion justifying abusive interrogations that was so deeply flawed it would be withdrawn by the administration's own lawyers within a year. By that time, Slahi had been tortured and an army specialist with a camera had documented the phenomenon of force drift as far away as Abu Ghraib prison in Iraq .

Like all the previous sections, this one, too, has its heroic dissenters – most notably Lieutenant Colonel Stuart Couch, a former Marine pilot who was close friends with one of the pilots on the doomed 9/11 jets and who was assigned to prosecute Slahi before the military commission in Guantánamo. His is one of the most compelling voices I've come across in writing this report. In his words and in his actions, he reminds us of why the way Slahi and many others are treated in this new section is wrong—not just ineffective or counterproductive, but profoundly counter to the fundamental belief, rooted for him in the tenets of Christianity and at the heart of civil law since the Enlightenment, of the essential dignity of every human being.

As he says near the end of this section:

I believe when, as a government, we adopt a policy that allows for the degradation and dehumanization of another human being, whoever they may be, whatever they may be charged with or alleged to have done, when we adopt this as an acceptable and authorized method of interrogation with that individual, we have now embarked on a slippery slope that we can easily slip down ourselves.

Force Drift, as Couch discovered, threatens all of us.
 

What Happened in Italy: An interview with "Kidnapping in Milan" author Steve Hendricks

In November, 2009, an Italian criminal court convicted 22 CIA agents and one Air Force officer of kidnapping for snatching an Egyptian-born Muslim cleric known as Abu Omar from a Milan street and rendering him to Egypt to be tortured. The 23 Americans were sentenced in absentia to from five to eight years in prison. It is the only criminal prosecution to date of anyone involved in the Bush administration's Rendition, Detention, and Interrogation program

Writer Steve Hendricks recreates this rare episode of accountability in his new book A Kidnapping in Milan: the CIA on Trial, a riveting prosecutor-versus-spy pageturner that reveals not only how lawless and abusive the CIA's Milan operation was, but also how bungling and utterly counterproductive.

I had the chance to interview Steve Hendricks last week about the book and about the quest for accountability in the U.S. and abroad. Here's what he had to say.

***

LS: In the U.S., as you know, we're having a hard time holding people accountable for torture. Last month, as the former president was boasting that he approved waterboarding, we learned that nobody will be prosecuted for the destruction of the CIA interrogation tapes, and we have been told that no CIA agents who used the White House-approved ‘enhanced interrogation techniques' will be prosecuted either. So to read A Kidnapping in Milan is first of all to be amazed that the events you recount actually happened, to be reminded that CIA agents have actually been tried and convicted in connection with the Bush administration's Rendition, Detention, and Interrogation program. What happened in Milan?

SH: In 2003, the Milanese counterterror police were closing in on a network of Islamic terrorists. They were a month or two away from arresting one of the network's ringleaders, an imam with a violent interpretation of the Quran named Abu Omar. But one fine February day, Abu Omar set off for noon prayers at his mosque and disappeared. Just vanished. His disappearance rather disrupted the fruitful investigation by the police into his cell. Eventually the counterterrorists discovered that the CIA had snatched Abu Omar, and had done so brazenly—in broad daylight, just down the block from one of the busiest streets in what is Italy 's second-largest city. If they had grabbed a guy at the lunch hour just off the Miracle Mile in Chicago, it could not have been more a more outrageous kidnapping. The kidnappers bound and gagged Abu Omar, roughed him up, and drove him several hours across northern Italy to Aviano Air Base. From there they flew him to Ramstein Air Base in Germany, where they packaged him further, and then flew him to Egypt, where for months and months and months he was savagely tortured.

LS: If Americans are familiar with the Milan story, it's probably through accounts of the dumbfoundingly sloppy spycraft of the CIA kidnapping team. What were some of their most notorious blunders?

SH: Their biggest idiocy was to use their cell phones like teenagers. Evidently they were unaware or unconcerned that with every connection to a cell tower, a phone company was logging their general location, with the time. The counterterror police knew Abu Omar had gone missing on his noon walk to his mosque, so they checked the records of nearby cell towers to see if there were suspicious calls around that time. The records showed that a dozen or so cell phones were stationed along his route making short calls to one another. The frequency of the calls increased as noon neared, they reached a crescendo at the moment of what must have been his kidnapping, and just after that all of the phones immediately left the area or were shut off. In other words, the kidnappers left the investigators an outline of how they had staked out Abu Omar's route and watched him as he stepped out his apartment and made his way toward the snatch team and was snatched.

The police, led by a bold magistrate named Armando Spataro, studied the movements of the dozen cell phones during the period of their activation and found that the phones were in frequent contact with scores of other cell phones. Spataro's team then traced most of the fifty or so phones to hotels, and by cross-checking the days the phones were there with the hotel check-in logs, they identified about two dozen kidnappers by name. (Many of the kidnappers had used multiple phones.) The majority of the names that the police found were aliases, but not all of them were. In some cases, the investigators found passport or driver's license photos, and in a few instances they even found frequent flyer numbers the kidnappers had given to hotels to earn award miles. Perhaps the kidnappers thought that since Abu Omar was getting a free flight out of the deal, they should too.

LS: As you lay out so well, the U.S. was seizing people and rendering them to third countries as a matter of policy even before 9/11. What was different about the Bush administration's rendition program? And what's wrong with removing terrorism suspects from the streets this way?

SH: Before September 11, 2001, the CIA carried out at least seventy extraordinary renditions—the vast majority, it seems, under Clinton. We know very little about most of these renditions, but the fact of our knowing little suggests they were carried out with a degree of discretion and competence. Under Bush, the quantity of renditions went up and the discretion and competence went down. Bush's CIA rendered several score victims at a minimum and more probably a couple hundred. His demands for renditions were so great that, for example, the CIA's in-house air fleet didn't have enough planes to do all the jobs, so the agency had to lease torture taxis from outside the agency. The CIA also rented many of the renderers—the on-the-ground planners, the heavies who actually grabbed the victims, the in-flight medics, you name it. A lot of them were poorly trained, including some of the kidnappers in Milan.

Bush also took a brazen approach to covert action that filtered down to the lowest levels of the CIA. Even in the best of times, the CIA thinks it can get away with murder (sometimes literally), but under Bush the hubris reached heights not seen since the anything-goes Cold War days. A lot of people involved in renditions believed they would never be punished, even when they broke the laws of allied countries like Italy .

As for what's wrong with extraordinary rendition, let me mention just two things from the many I could offer. First, when we kidnap men and dump them in Third World hellholes to be tortured rather than bringing them back to the United States to be tried, we violate our most fundamental legal principles. Ever hear of innocent until proven guilty? The right to a fair trial? The right to answer, with adequate counsel and evidence, the charges of your accuser? A lot of people (either ill informed or immoral) have responded that if the CIA grabs someone, he must be guilty. Those people should talk to German citizen Kahled El-Masri and Canadian citizen Maher Arar, both innocents whom we mistakenly rendered to foreign dungeons where they were horrifically tortured. They will spend the rest of their days trying to pick up the pieces of their shattered lives.

A second reason to decry extraordinary rendition is that it's a crime under both US and international law. The UN Convention Against Torture, which Congress and President Clinton made law in 1994, says it is a crime to “effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture. . .” Apologists for extraordinary rendition—that is, apologists for torture by proxy—argue that our extraordinary enemy justifies extraordinary measures. But this argument is a canard the Convention Against Torture foresaw. “No exceptional circumstances whatsoever,” the Convention reads, “whether a state of war or a threat of war, internal political instability, or any other public emergency may be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.” And I would add that to violate the Convention repeatedly is to commit not merely a crime but a crime against humanity.

LS: Talk a little about Abu Omar—who is he, and what did Italian law enforcement know about him before the Americans seized him?

SH: Abu Omar was a radical Egyptian cleric who fled his homeland in 1989 because of persecution there. Thereafter he spent nearly a decade among extremists in Yemen , Peshawar , and the Balkans, probably becoming ever more radicalized, before settling in Italy in 1996. In Milan he quickly established himself atop a modest-sized terrorist cell that tried to recruit young men to go to Iraq and fight, and perhaps to suicide-bomb, the Americans. Abu Omar was just one of many such recruiters across Europe , and while he was not harmless, he was by no means a big fish. The Italian counterterror police knew all of this because they had him under very close surveillance. They knew he had no immediate plans to mount an attack, and they would almost certainly have learned if his plans changed. And as I said above, they were about to arrest him. There was, in short, no reason whatsoever to render him, even by the CIA's own criteria, which amounted to getting “the worst of the worst” off the street when they couldn't be taken care of any other way.

LS: One of the perpetual debates in the U.S. is over whether terrorism suspects should be treated as criminals or as combatants, and the widespread supposition seems to be that the criminal justice system is somehow too weak to try and convict terrorists or effectively neutralize them. How do the Italians view this question? What would Armando Spataro have to say about this?

SH: Magistrate Spataro would say the U.S. approach to terrorism is matto— nuts. He and his colleagues in Milan fight terrorists with old-school police work: tapping and bugging, staking out and using informers, indicting and arresting, trying and, almost always, convicting. It's nothing fancy, just good cop work and respect for the rule of law, but the Milanese have probably lawfully put away more terrorists in their one small jurisdiction than the entire U.S. government has put away through the lawlessness of renditions, torture, and illegal war.

Italy has long experience stopping terrorists by treating them as criminals rather than enemy combatants. From the late 1960s through the early 1980s, Italians endured what almost amounted to a low-grade civil war, with terrorists of the right and left kidnapping, assassinating, and indiscriminately killing people by the hundreds. The Italians call the era the Years of Lead, as in the material of bullets, and they had a choice during those years: clamp down with martial law and other authoritarianisms or stick with the rule of law and their democratic principles. Rightists wanted the former—indeed, much of the terrorism of the right was an attempt to provoke Italians to return to Fascism—but although the government infringed on some civil liberties, on the whole it stayed true to the rule of law. Spataro was one of the magistrates who applied the law, and, to oversimplify a bit, he and his peers arrested and prosecuted the terrorists out of existence. He concedes that you can crush people with lawless brutality, but he argues, correctly, that others will rise up in retaliation, as we have seen in Iraq. “We make a big gift to the terrorists when we behave contrary to our democratic principles,” he says. “We give to those fish other water to swim.”

LS: What has happened to the characters whose stories you chronicle—to Abu Omar? Spataro? the CIA agents?

SH: Twenty-three of the twenty-six alleged kidnappers were convicted in absentia and sentenced to from five to eight years, depending on their degree of involvement. Because the verdict is valid throughout the European Union, any of the convicts who sets foot in an EU country is to be arrested and forwarded to an Italian prison. Most of the kidnappers don't have much to worry about since they were convicted under their fake names, but a few were convicted under their real names, and even those who weren't have to worry that their true names might come out. (I tracked down a some of them, as I recount in my book.) The judge also ordered the guilty to repair Abu Omar and his wife with 1.5 million euros. Again, this won't affect most of the kidnappers, all of whom had long since left Italy before they were charged. But the CIA chief in Milan, Bob Lady, had a hilltop villa with ten acres of vineyards that the Italians seized. If his conviction withstands the appeal filed by his court-appointed lawyer, the villa will be sold and the proceeds given to Abu Omar, who could live like a pharaoh off the income.

As for Abu Omar, after a year of brutal torture, the Egyptians released him, which was another sign he was not the major terrorist the CIA claimed—if he had been, he would never have gotten out. The Egyptians ordered him not to talk about his ordeal, but he called his family and friends in Italy, and the Egyptian state security service (which had surely tapped his phone) hauled him back to prison. Again he was tortured, but the torture tapered off, and two years later he was released once more. He lives somewhat freely in Alexandria but is not permitted to leave Egypt. Most of his bodily wounds have healed, but his psychological ones have not, and when last I saw him, he was ennervated, depressed, and unable to master his emotions. He recently divorced his wife.

Armando Spataro, after winning his convictions, went back to what he had been doing before the CIA sidetracked him: he is prosecuting Islamic terrorists again. He convicted all of the members of Abu Omar's terrorist cell and convicted many other terrorists besides, and he is rumored to be gathering evidence that might someday allow him to prosecute officials at the CIA headquarters and the White House who ordered Abu Omar's kidnapping. He also plays a lot of water polo.

LS: What is the public's view in Italy about this case and about the trial and conviction of the CIA agents? What would they say to Americans about reckoning with torture?

SH: Most Italians were outraged by the CIA's rendition of Abu Omar. As I researched A Kidnapping in Milan , many Italians said to me, How would gli americani like it if Italian spies flew over to the United States and swiped a terrorist who had been under fruitful surveillance by the FBI? But while there was originally widespread outrage, many Italians came to oppose Spataro's prosecution. These Italians had bought into the spurious argument of Silvio Berlusconi, the prime minister who doubles as the bimbo-chasing clown-in-chief, that we can't try spies for their crimes because to do so would reveal state secrets vital to national security. It's the same argument that Bush and Obama have used to get courts to throw out lawsuits here by victims of extraordinary rendition. Happily, Berlusconi failed to get most of Spataro's case thrown out (Berlusconi got a few lesser pieces of evidence barred), but he succeeded in convincing a large minority of the Italian public that the darker deeds of the war on terror are best left buried.

If most Italians nonetheless see a need to reckon with torture, it is partly because torture is not abstract for them. There are still Italians alive who were tortured under Mussolini or were shipped off and tortured in Nazi concentration camps. “We have known the way of Fascism,” Spataro likes to say. “We do not wish to repeat our mistakes.” The United States too has known a soft Fascism under Bush, but under Obama we are repeating our mistakes. No doubt we will continue to do so until we have had our day of reckoning.

 

Ten Questions: #10

Last month, when the United States had its human rights record reviewed by the United Nations in Geneva, U.S. State Department legal advisor Harold Koh assured the world that all alleged abuses of detainees in the custody of the U.S. military “have been thoroughly investigated and appropriate corrective action has been taken,” and that Special Prosecutor John Durham is actively investigating allegations of torture by the CIA and other civilian agencies.

Drawing largely from material we have covered so far in the The Torture Report, I have come up with a list of 10 follow-up questions that the press and public at large—indeed, all of us—should be asking the Obama administration about the status of U.S. compliance with its domestic and international commitments on Torture and Cruel, Inhuman, and Degrading Treatment. Today we ask question #10.

As we will see in the next installment of Chapter 5—which we'll post next week— military interrogators in Guantánamo followed the brutal interrogation of Mohammed Al Qahtani with a similar “special interrogation” of another detainee, Mohamedou Ould Slahi, this one involving threats of torture against his family, a mock rendition, and threatened execution.

In Slahi's case, Lieutenant Colonel Stuart Couch, the navy prosecutor assigned to prepare his case for the military commissions, discovered that Slahi had been tortured and refused to prosecute his case. Earlier this year, a federal judge hearing Slahi's habeas corpus petition similarly concluded that many of his statements were extracted through torture, and ultimately found that the government had failed to prove its case against Slahi, ordering him released. The government attempted to reverse that decision on appeal, but the appellate court agreed only to send the case back to the trial court for additional proceedings.

As with Qahtani, can you list the names and ranks of all military personnel who have been investigated for ordering and carrying out Mohamedou Ould Slahi's interrogation, and the status and results of any court-martial or other disciplinary proceedings that resulted from those investigations?

 

Ten Questions: #9

Last month, when the United States had its human rights record reviewed by the United Nations in Geneva, U.S. State Department legal advisor Harold Koh assured the world that all alleged abuses of detainees in the custody of the U.S. military “have been thoroughly investigated and appropriate corrective action has been taken,” and that Special Prosecutor John Durham is actively investigating allegations of torture by the CIA and other civilian agencies.

Drawing largely from material we have covered so far in the The Torture Report, I have come up with a list of 10 follow-up questions that the press and public at large—indeed, all of us—should be asking the Obama administration about the status of U.S. compliance with its domestic and international commitments on Torture and Cruel, Inhuman, and Degrading Treatment. Today we ask question #9.

A 2006 report by Human Rights First titled Command's Responsibility found that nearly 100 detainees had died in U.S. custody in the global “war on terror.” This number does not include battlefield deaths; it counts only deaths during interrogation in U.S.-run facilities and people killed after they had surrendered to U.S. forces. According to military records available to Human Rights First investigators at the time, 34 of these deaths were either confirmed or suspected homicides, and at least 11 more to have been the result of abuse or detention conditions. Since Human Rights First's report came out, military documents and credible media accounts indicate that many more detainees have died in U.S. custody. Please provide a list of all investigations into deaths of detainees in U.S. military custody, any criminal and administrative proceedings stemming from investigations, and any resulting sanctions. What is the highest rank of U.S. servicemembers punished in connection with the death of a detainee?

 

Ten Questions: #8

Last month, when the United States had its human rights record reviewed by the United Nations in Geneva, U.S. State Department legal advisor Harold Koh assured the world that all alleged abuses of detainees in the custody of the U.S. military “have been thoroughly investigated and appropriate corrective action has been taken,” and that Special Prosecutor John Durham is actively investigating allegations of torture by the CIA and other civilian agencies.

Drawing largely from material we have covered so far in the The Torture Report, I have come up with a list of 10 follow-up questions that the press and public at large—indeed, all of us—should be asking the Obama administration about the status of U.S. compliance with its domestic and international commitments on Torture and Cruel, Inhuman, and Degrading Treatment. Today we ask question #8.

Maher Arar and Khaled El-Masri were concededly innocent individuals mistakenly swept up into the CIA's rendition program. Canada has publicly acknowledged the mistake and partially compensated Maher Arar for its role in his torture, and a case is proceeding against Macedonia at the European Court of Human Rights for collaborating with the United States in the rendition and torture of Khaled El Masri. By contrast, in the United States , Arar's and El Masri's lawsuits have been thrown out of court before ever getting to the merits. What investigations have been conducted in the United States into their torture, and who has been held accountable?

 

Ten Questions: #7

Last month, when the United States had its human rights record reviewed by the United Nations in Geneva, U.S. State Department legal advisor Harold Koh assured the world that all alleged abuses of detainees in the custody of the U.S. military “have been thoroughly investigated and appropriate corrective action has been taken,” and that Special Prosecutor John Durham is actively investigating allegations of torture by the CIA and other civilian agencies.

Drawing largely from material we have covered so far in the The Torture Report, I have come up with a list of 10 follow-up questions that the press and public at large—indeed, all of us—should be asking the Obama administration about the status of U.S. compliance with its domestic and international commitments on Torture and Cruel, Inhuman, and Degrading Treatment. Today we ask question #7.

In November 2002, the CIA tortured a detainee recently identified as Gul Rahman to death at its secret “Salt Pit” interrogation facility in Afghanistan, stripping him, shackling him, dousing him with water, and leaving him exposed in frigid weather overnight; he died of hypothermia. It has been reported that Attorney General Eric Holder specifically directed Special Prosecutor John Durham to investigate this case and others that the CIA's Inspector General had referred to the Justice Department, only to have the Bush Justice Department decline to prosecute. Is the Justice Department in fact investigating the Salt Pit killing? What is the status of Durham 's investigation, if any, of this case?

 

Ten Questions: #6

Last month, when the United States had its human rights record reviewed by the United Nations in Geneva, U.S. State Department legal advisor Harold Koh assured the world that all alleged abuses of detainees in the custody of the U.S. military “have been thoroughly investigated and appropriate corrective action has been taken,” and that Special Prosecutor John Durham is actively investigating allegations of torture by the CIA and other civilian agencies.

Drawing largely from material we have covered so far in the The Torture Report, I have come up with a list of 10 follow-up questions that the press and public at large—indeed, all of us—should be asking the Obama administration about the status of U.S. compliance with its domestic and international commitments on Torture and Cruel, Inhuman, and Degrading Treatment. Today we ask question #6.

The CIA Inspector General's investigation into the use of “enhanced interrogation techniques” revealed that a number of “unauthorized” techniques were used against Khaled Sheikh Mohammed and Abd al-Rahim al-Nahiri such as threats with a handgun and power drill and threats against family members. Who has been held accountable for those “unauthorized” techniques, and what punishments if any were given?

 

Ten Questions: #5

Last month, when the United States had its human rights record reviewed by the United Nations in Geneva, U.S. State Department legal advisor Harold Koh assured the world that all alleged abuses of detainees in the custody of the U.S. military “have been thoroughly investigated and appropriate corrective action has been taken,” and that Special Prosecutor John Durham is actively investigating allegations of torture by the CIA and other civilian agencies.

Drawing largely from material we have covered so far in the The Torture Report, I have come up with a list of 10 follow-up questions that the press and public at large—indeed, all of us—should be asking the Obama administration about the status of U.S. compliance with its domestic and international commitments on Torture and Cruel, Inhuman, and Degrading Treatment. Today we ask question #5.

The International Committee of the Red Cross concluded in 2007 that the treatment of Abu Zubaydah at the CIA black site in Thailand and the use of many of the same “enhanced interrogation techniques” on 13 other “high value detainees” in secret CIA prisons included torture and cruel, inhuman, and degrading treatment, both prohibited under the Geneva Conventions and the 1984 UN Convention Against Torture. Zubaydah's account to the Red Cross of his ordeal matches the August 1, 2002 Office of Legal Counsel memos authorizing his torture exactly, and videotapes of his interrogation showed that it proceeded precisely as directed and approved from Washington.

Is Special Prosecutor John Durham investigating the torture of Abu Zubaydah? Does his investigation reach both to the interrogation team, led by Dr. James Mitchell, who designed the so-called “enhanced interrogation techniques,” and to the senior Bush administration officials who approved and monitored Abu Zubaydah's torture?

 

Ten Questions: #4

Last month, when the United States had its human rights record reviewed by the United Nations in Geneva, U.S. State Department legal advisor Harold Koh assured the world that all alleged abuses of detainees in the custody of the U.S. military “have been thoroughly investigated and appropriate corrective action has been taken,” and that Special Prosecutor John Durham is actively investigating allegations of torture by the CIA and other civilian agencies.

Drawing largely from material we have covered so far in the The Torture Report, I have come up with a list of 10 follow-up questions that the press and public at large—indeed, all of us—should be asking the Obama administration about the status of U.S. compliance with its domestic and international commitments on Torture and Cruel, Inhuman, and Degrading Treatment. Today we ask question #4.

In granting the habeas corpus petition of Uthman Abdul Rahim Mohammed Uthman in March 2010, Judge Henry Kennedy Jr. wrote, “The court will not rely on the statements of Guantánamo detainees [Sharqwi Abdu Ali Al-] Hajj and [Sana Yislam Ali Al] Kazimi because there is unrebutted evidence in that record that, at the time of the interrogations at which they made the statements, both men had recently been tortured”—Hajj first in Jordan and then at the CIA's “Dark Prison” in Afghanistan, and Kazimi in both the United Arab Emirates and the Dark Prison.

Who ordered the rendition of Hajj and Kazimi to third countries and their abuse in CIA custody in Afghanistan , and who, if anyone, has been investigated or prosecuted in connection with their torture? Is their treatment in CIA custody in Afghanistan under investigation by Special Prosecutor John Durham?

 

Ten Questions: #3

Last month, when the United States had its human rights record reviewed by the United Nations in Geneva, U.S. State Department legal advisor Harold Koh assured the world that all alleged abuses of detainees in the custody of the U.S. military “have been thoroughly investigated and appropriate corrective action has been taken,” and that Special Prosecutor John Durham is actively investigating allegations of torture by the CIA and other civilian agencies.

Drawing largely from material we have covered so far in the The Torture Report, I have come up with a list of 10 follow-up questions that the press and public at large—indeed, all of us—should be asking the Obama administration about the status of U.S. compliance with its domestic and international commitments on Torture and Cruel, Inhuman, and Degrading Treatment. Today we ask question #3.

When Guantánamo detainee Mohammed Jawad came before the Military Commission, military judge Colonel Stephen Henley found that the “frequent flyer” sleep deprivation regime to which Jawad had been subjected from May 7 to May 20, 2004 constituted cruel, abusive and inhuman treatment. During the commission proceedings, the officer in charge of the “frequent flyer program” presented testimony and evidence that the treatment Mohammed Jawad suffered was “standard operating procedure” and was used on many detainees at least until April 2005.

Mohammed Jawad’s military defense counsel, Lieutenant Colonel David Frakt, filed a Law of Armed Conflict Violation report, the formal notice by which military personnel alert their superiors that a possible war crime has occurred, when he first discovered this abuse in May 2008. He repeatedly requested to be informed of the status of the investigation, but it appears that no investigation was ever initiated, even when the matter was reported in the Washington Post and the Washington Independent. Lt. Col. Frakt has never been contacted by anyone in the Defense Department concerning his report.

Was the violation that Lt. Col. Frakt reported ever investigated? If so, by whom? What was the result of the investigation? Has anyone been disciplined in relation to the frequent flyer program that was in place in Guantánamo up to April 2005?

 

Ten Questions: #2

Last month, when the United States had its human rights record reviewed by the United Nations in Geneva, U.S. State Department legal advisor Harold Koh assured the world that all alleged abuses of detainees in the custody of the U.S. military “have been thoroughly investigated and appropriate corrective action has been taken,” and that Special Prosecutor John Durham is actively investigating allegations of torture by the CIA and other civilian agencies.

Drawing largely from material we have covered so far in the The Torture Report, I have come up with a list of 10 follow-up questions that the press and public at large—indeed, all of us—should be asking the Obama administration about the status of U.S. compliance with its domestic and international commitments on Torture and Cruel, Inhuman, and Degrading Treatment. Today we ask question #2.

In Farhi Saeed Bin Mohammed's habeas proceedings, Judge Gladys Kessler disallowed evidence she concluded had been “obtained by torture,” including statements by Binyam Mohammed, who she found had been abused in Pakistan at the direction of the United States and who was then tortured in Morocco and the CIA's “Dark Prison” in Afghanistan. This month, the government of the United Kingdom reached a settlement agreement that includes substantial financial compensation to Binyam Mohammed for its own complicity in his U.S.-orchestrated torture. Is the treatment of Mohammed the subject of any past or current U.S. investigation? Who has been prosecuted or disciplined in connection with his torture?

 

Ten Questions: #1

When the United States appeared before the United Nations Human Rights Council last month, the U.S. delegation faced tough questions concerning its compliance with global prohibitions on torture and the Convention Against Torture's requirements that all allegations of torture be investigated, that perpetrators of torture be punished, and that victims be compensated. During the U.N. session, U.S. State Department legal advisor Harold Koh repeatedly assured the world that all alleged abuses of detainees in the custody of the U.S. military “have been thoroughly investigated and appropriate corrective action has been taken,” and that Special Prosecutor John Durham is actively investigating allegations of torture by the CIA and other civilian agencies.

Based on these statements, I have come up with a list of 10 follow-up questions, drawn largely from material we have covered so far in The Torture Report, that I think the press and public at large—indeed, all of us—should be asking the Obama administration about the status of U.S. compliance with its domestic and international commitments on Torture and Cruel, Inhuman, and Degrading Treatment. Today we ask question #1.

In January 2009, Susan Crawford, the former Convening Authority of the Guantánamo Military Commissions, publicly acknowledged she had not referred Mohammed Al-Qahtani's case for prosecution because “We tortured Qahtani”; his treatment, she said, “met the legal definition of torture.” Can you list the names and ranks of all military personnel who have been investigated for ordering and carrying out his interrogation, and the status and results of any court-martial or other disciplinary proceedings that resulted from those investigations?

 

More and More Questions

I was in Geneva when word leaked out that George Bush's memoir contained a passage in which he said, “Damn right!” he'd approved the torture of Khalid Sheikh Mohammed—who, as we know, was waterboarded 183 times at the CIA's secret prison in Poland in the spring of 2003. I was there, like a delegation from the ACLU and representatives from scores of other U.S. and international NGOs, to watch the world question the United States about its human rights record as part of the United Nations' Universal Periodic Review process, where the U.S. delegation faced many questions like this one, from Russia:

What administrative and legislative steps are taken by the United States to hold accountable persons (including medical personnel) who had tortured detainees in US secret prisons as well as detention centers in Bagram (Afghanistan) and Guantanamo Bay? What is being done to provide effective remedies to civilian victims of the “war on terror,” including the detainees of the secret prisons and centers in Guantanamo and Bagram?

During the three-hour UPR session, State Department legal advisor Harold Koh assured the assembled nations that the United States was committed to abiding by the ban on torture and inhumane treatment—which explicitly requires nations to carry out criminal investigations of torture allegations, prosecute perpetrators, and make reparations to victims— and stated flatly, “Nothwitstanding recent public allegations, to our knowledge, all credible allegations of detainee abuse by United States forces have been thoroughly investigated and appropriate corrective action has been taken.”

At a “Town Hall” meeting with NGOs later in the day, Koh elaborated, explaining that he was speaking specifically about abuse allegations involving detainees in the custody of the U.S. military; meanwhile, he said, the Justice Department had appointed Special Prosecutor John Durham to conduct an investigation of allegations involving civilians and civilian agencies, and that Durham's investigation was ongoing.

Dozens of simple, direct questions leapt to mind, of course, about both the military and civilian investigations. At a press conference that afternoon, with Bush's admission hanging in the air, reporters from around the world raised the most obvious: Does that mean the United States is still considering legal investigations and federal prosecutions of those who gave the green light for the torture of “high value detainees” in secret CIA prisons?

Moments before, Koh had told the international press corps, “the Obama administration defines waterboarding as torture as a matter of law under the Convention Against Torture; it's part of our legal obligation.” Assistant Secretary of State Esther Brimmer, who led the U.S. delegation to Geneva , followed by declaring emphatically, “The prohibition against torture and cruel treatment applies to every U.S. official, every agency, everywhere in the world. There is an absolute prohibition as a matter of law and policy.”

So would the U.S. consider prosecuting those who ordered and approved waterboarding? Again Koh pointed to Durham 's investigation, saying specifically “the Attorney General has referred this very issue” to the Special Prosecutor. “Those investigations are ongoing. The question is not whether they would consider it; those discussions are going on right now.”

As we saw in Chapter 3, Durham was originally appointed by then-Attorney General Michael Mukasey in January 2008 to investigate the CIA's destruction of the Abu Zubaydah and al-Nashiri interrogation tapes. Incoming Attorney General Eric Holder made no move to expand the scope of Durham 's investigation until August 24, 2009, the same day the May 2004 report of the CIA's Inspector General was released. At that time, Holder announced he had asked Durham to open “a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.”

While the scope of this investigation has not been publicly defined, press reports have consistently suggested that it is focused on the death of a detainee at the CIA's “Salt Pit” facility in Afghanistan, the “gun and drill incident” involving al-Nashiri in Poland, and a handful of other incidents in which CIA agents and contractors had used techniques other than those approved in the torture memos. “I have made clear...that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees,” Holder has insisted.

Now, in Geneva , Koh was offering the international media the scintillating suggestion that Durham was authorized to look beyond the so-called “improvised techniques” to the use of the enhanced interrogation techniques themselves, waterboarding in particular, which the Obama administration acknowledges is torture.

That was on Friday, November 5, in Geneva . The following Monday, NBC ran Matt Lauer's interview with George Bush, where the former president insisted that waterboarding was legal “because the lawyer said it was legal.” I was in London then, on my way back to New York . Bush's claims continued to ricochet around the world: Tuesday morning, the British newspapers were dominated by headlines declaring that U.K. government and intelligence officials disputed Bush's claim, made in his memoir, that waterboading KSM had foiled a plot to bomb Heathrow airport—a plot, indeed, that British intelligence uncovered a month before KSM's arrest.

I read several versions of that story on my flight from Heathrow to Newark. Then, when I landed, I read another batch of articles, these just appearing on major media sites, that Justice Department spokesperson Matthew Miller had announced that after an “exhaustive investigation,” “Mr. Durham has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes.” The announcement came on the last possible day under the five-year statute of limitations to file charges for the tapes' destruction, and cast a long shadow over Harold Koh's repeated references just four days before to the status and scope of Durham 's investigations.

As I said, Koh's assertions before the U.N. Human Rights Council and before the international media that all incidents of torture and cruel, inhuman, and degrading treatment by the military have been investigated and addressed, and that investigations continue into the torture of detainees in CIA custody, raised dozens of simple, direct questions. For the next two weeks, starting on Monday, we'll ask 10 of those questions here in the Torture Report diary.

 

For Binyam Mohamed and Others in the U.K., Compensation. For Us, New Lies

The story the Guardian posted today, second in prominence only to an article announcing Prince William's engagement, begins,

The government insisted today that it had started to draw a line under the legacy of complicity in rendition and torture that it inherited from the Labour administration by settling claims brought by 16 former Guantánamo inmates.

Those 16 former Guantánamo detainees include Binyam Mohamed; today's announced settlement includes substantial compensation for the British government's complicity in his U.S.-directed rendition and torture. As today's Guardian story — titled "Guantánamo Bay prisoner payouts a first step to ending legacy of torture" — makes clear, the settlement is one part of a wide-ranging effort in the U.K. to address what the British Defense Ministry calls “detainee legacy issues.”

Legal proceedings may soon be filed on behalf of other U.K.-based former detainees who were interrogated at the behest of the U.S. in Guantánamo, Afghanistan, Pakistan, Bangladesh, Ethiopia, Egypt, and Syria. At the same time, Scotland Yard is continuing to investigate whether individual agents of the U.K. 's M15 and M16 intelligence services can be held criminally liable for their role in the interrogation of Binyam Mohamed in Pakistan and Morocco. And as soon as that investigation is completed, the government will begin an official investigation, headed by Sir Peter Gibson, into the extent to which the Blair government aided and abetted the Bush administration's torture program, an inquiry that will include the review of hundreds of thousands of pages of secret documents.

It remains to be seen how much of the evidence Gibson reviews will be made public. But as of today, for Binyam Mohamed, the British government is halfway toward honoring its obligations under the Convention against Torture to uncover the truth and to compensate for torture.

Meanwhile, here in the U.S., there remains little prospect of redress for those we abused, and truth just seems to be slipping further and further away.

At an appearance at the Miami Book Fair this past Sunday, for example, former President Bush spoke again, as he has since beginning his book tour, of his decision to order the use of “enhanced interrogation techniques” include waterboarding; this time he acknowledged approving the waterboarding not just of Khalid Shiekh Mohammed and of Abu Zubaydah but of a third person, known to be Abd al-Rahim al-Nashiri, as well. He went on to tell the audience that in his memoir,

I walk you through getting this capability, this tool, passed by the United States Congress so it is now available to any president to use should he or she choose to do so.

It was a spectacular lie. Congress never acted to sanction the CIA's enhanced interrogation techniques, which were classified and known only to a few members of the congressional intelligence committees. And one of the first things President Obama did when he took office was to shut down the CIA's secret interrogation program and order that all interrogations be conducted according to the Army Field Manual. The Obama administration has acknowledged that waterboarding is torture and made clear the “tool” of enhanced interrogation techniques, which never should have been available in the first place, is most definitely not available to this or any future presidents to use.

What was most flabbergasting and deflating about Bush's claim was the response it received: warm, sustained applause, and not a single follow-up question.

 

How It Looks From Poland

We've learned in recent months that the interrogation of Abd al-Rahim al-Nashiri described in Chapter 3 took place not only in the CIA's black site in Thailand but also at another black site in Poland, and that it was in Poland that an agent identified by the CIA's Inspector General as “Albert” threatened al-Nashiri first with a gun and then with a power drill. In fact, we now know that al-Nashiri and Abu Zubaydah were bundled onto a plane to Dubai and then on to Szymany, Poland on December 5, 2002, the very day the CIA's cameras, which that week had recorded al-Nashiri's waterboarding, went dark in Thailand.

When al-Nashiri and Zubaydah—hooded, diapered, shackled—stepped onto the tarmac at Szymany airport with their armed, CIA-contracted escorts, they were setting foot in a country with one of the newest constitutions in the world, a nation which, in the moving words of that document's preamble, “recovered, in 1989, the possibility of a sovereign and democratic determination of its fate” and which remains “mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland.” Ratified in 1997—barely five years before the CIA's plane landed— Poland 's constitution declares simply, in its Article 40,

No one may be subjected to torture or cruel, inhuman, or degrading treatment or punishment. The application of corporal punishment shall be prohibited.

That the United States operated secret prisons anywhere on earth with the specific intention of placing both prisoners and jailors outside the reach of U.S. laws prohibiting torture is outrageous in itself, of course. But there is something especially perverse about basing one of these facilities in a country whose “bitter recent experiences” include first Nazi occupation and extermination camps and then four decades of communist oppression, and whose newly-cemented constitutional republic seems to be the apotheosis of everything the United States has promoted internationally for the past 75 years. It's shocking, in fact: the people of Poland create a state that embraces, without reservation, international human rights ideals including the absolute ban on torture and cruel, inhuman, and degrading treatment, and the first thing the United States does is pollute that state by setting up and running a secret torture facility on Polish soil.

Unfortunately for (and apparently unlike) the United States , the Poles take their new constitution seriously. For the past two years, Polish prosecutors have been investigating the CIA's Szymany black site—the existence of which the Polish government still officially denies— and this past week prosecutors granted Abd al-Rahim al-Nashiri so-called “victim status,” a legal designation under Polish law that will allow his attorneys to file motions for evidence and be present at witness interviews.

This official recognition of al-Nashiri's claim that he was tortured in Poland came in response to an extraordinary “Procedural letter concerning representation in proceedings” that was filed last week by Mikolaj Pietrzak, al-Nashiri's Warsaw-based attorney. Far from a dry legal formality, Pietrzak's letter is a vivid and sobering discussion of al-Nashiri's treatment and the United States ' conduct through the lens of Polish sovereignty and Polish criminal law.

In formally petitioning the prosecutor's office to designate al-Nashiri as a victim with rights in the investigation, the letter lays out a litany of criminal laws the U.S. likely violated in its interrogation of al-Nashiri in the blacksite. Many of the crimes are obvious from any perspective (subjecting him to torture and physical violence, illegally imprisoning him, threatening him with death and threatening members of his family). But some offer pointed illuminations of how utterly lawless the CIA's behavior must appear from the Polish point of view: “Albert” used a gun not registered in Poland , a crime in itself. He and his CIA cohorts behaved in a way that they could be characterized as an armed, organized criminal group under Polish law. And because Poland is a signatory to European conventions barring the death penalty and prohibiting parties from delivering individuals into the hands of countries where they are likely to face torture or capital punishment, the potential crimes include not only torturing al-Nashiri in Poland but also later allowing him to be taken from Poland to Guantánamo.

The Procedural Letter of al-Nashiri's attorney names names and calls out the potentially criminal individuals: George Tenet, John McLaughlin, Porter Goss, and Michael Hayden, the four successive CIA directors; James Mitchell and Bruce Jessen; Christopher Hill and Victor Ashe, the presiding U.S. ambassadors to Poland; four successive Polish prime ministers and a former president, and the heads of the Polish Armed Forces and intelligence services—plus the CIA agents in charge of the black sites in Thailand and Poland, the supervising medical personnel at the black site, the pilots of two different planes the CIA used for al-Nashiri's renditions, all of whom are also apparently identified by name in redacted passages.

The Procedural letter lays all this out with a controlled but insistent note of outrage that gives a sense of what many Poles must feel—and isn't all that difficult to understand why. How would we feel, after all, if we found out our government had secretly allowed a foreign government to violate some of our most basic laws and fundamental principles on American soil? How about if we'd found something like this out just five years after the founders enshrined those laws and principles in our constitution?

 

On Jeppesen, Part 2: Other Remedies

When Prime Minister David Cameron went before the House of Commons in July to announce an official investigation into allegations that British intelligence agents had been complicit in the U.S. orchestrated rendition and torture of Binyam Mohamed and other U.K. residents, he answered the question I posed at the end of the last diary entry this way:

For the past few years, the reputation of our security services has been overshadowed by allegations about their involvement in the treatment of detainees held by other countries.

Some of these detainees allege they were mistreated by those countries.

Other allegations have also been made about the U.K. 's involvement in the rendition of detainees in the aftermath of 9/11.

These allegations are not proven.

But today, we do face a totally unsatisfactory situation.

Our services are paralysed by paperwork as they try to defend themselves in lengthy court cases with uncertain rules.

Our reputation as a country that believes in human rights, justice, fairness and the rule of law—indeed for much of what the Services exist to protect—risks being tarnished.

Public confidence is being eroded with people doubting the ability of our Services to protect us and questioning the rules under which they operate. And terrorists and extremists are able to exploit these allegations for their own propaganda.

Mr. Speaker, myself, the Deputy Prime Minister, the coalition government—we all believe it is time to clear this matter up once and for all.

When he made this announcement, Cameron also told reporters he expected his government would be settling the civil lawsuit Mohamed and others have filed in the U.K., thereby settling the Convention Against Torture's requirement that governments responsible for or complicit in torture compensate the victims of abuse.

In other words, the British Prime Minister decided that his office has both the power and responsibility to investigate and right the wrongs of the recent past—and that doing so is essential for Britain 's national security.

I've been thinking about this a lot in light of the U.S. Ninth Circuit Court of Appeals ruling that Mohamed and his four co-plaintiffs can't press their claims against Jeppesen in American courts without endangering state secrets.

There is no state secrets privilege in the U.S. Constitution. There is, however, a detailed diagram of three co-equal branches of government, each with responsibilities—and abilities—to check the conduct of the others. Under the scheme, the branch we instinctively look to for justice when government agents violate the law and trample individual rights is the courts. But the Jeppesen decision, coupled with the Supreme Court's refusal this year to hear the case of Mahar Arar, the Canadian citizen who was mistakenly rendered to Syria to be tortured, should make us all pause and reexamine the assumption that our courts stand between us and unchecked presidential lawlessness.

Declaring that it was denying Mohamed and his co-plaintiffs their day in court “reluctantly,” the court's narrow majority tried to mitigate the damage of its own actions by insisting that the men could look to the other two branches of government for justice. In an unusual section of the opinion titled “Other Remedies,” Judge Fisher acknowledges that the court's decision “deprives [the plaintiffs] of the opportunity to prove their alleged mistreatment and obtain damages,” and that terminating the case eliminates an “important check on alleged abuse by government officials and putative contractors”; however, he insists, “Our holding today is not intended to foreclose—or to prejudge—possible non-judicial relief, should it be warranted for any of the plaintiffs.”

First, that the judicial branch may have deferred to the executive branch's claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs' claims have merit and whether misjudgments or mistakes were made that violated plaintiffs' human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II.

Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch….

Third, Congress also has the power to enact private bills….When national security interests deny alleged victims of wrongful governmental action meaningful access to a judicial forum, private bills may be an appropriate alternative remedy.

Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here. When the state secrets doctrine “compels the subordination of appellants' interest in the pursuit of their claims to the executive's duty to preserve our national security, this means that remedies for…violations that cannot be proven under existing legal standards, if there are to be such remedies, must be provided by Congress. That is where the government's power to remedy wrongs is ultimately reposed.” Halkin v. Helms, 690 F.2d at 1001

Judge Hawkins, in his dissenting opinion, scoffed at this suggestion that the plaintiffs could expect justice from the White House and Congress—the very branches of government, after all, that had run, and tacitly supported, the Rendition, Detention, and Interrogation program:

The majority concludes its opinion with a recommendation of alternative remedies. Not only are these remedies insufficient, but their suggestion understates the severity of the consequences to Plaintiffs from the denial of judicial relief. Suggesting, for example, that the Executive could “honor[] the fundamental principles of justice” by determining “whether plaintiffs' claims have merit” disregards the concept of checks and balances. Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter. The majority's suggestion of a payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered, elevates the impractical to the point of absurdity. Similarly, a congressional investigation, private bill, or enactment of “remedial legislation” leaves to the legislative branch claims which the federal courts are better equipped to handle.

Hawkins punctuates his point by citing Justice Scalia's dissenting opinion in Hamdi v. Rumsfeld, in which the Supreme Court recognized the right of Guantánamo detainees to challenge their detention in U.S. courts; he quotes a passage in which Scalia, arguing the court's decision did not go far enough to check potential presidential lawlessness, quotes British jurist Sir William Blackstone:

Arbitrary imprisonment and torture under any circumstance is a “‘gross and notorious…act of despotism.'” But “‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.'”

Sir Blackstone wrote this in 1765, before the creation of the United States. Interestingly, in the country where those words were written—a country where civil suits brought by Binyam Mohamed and other U.K. residents mistreated at the behest of the U.S. are still very much alive—the government appears poised to honor its obligations under the Convention Against Torture and its own national principles. Here in the U.S., meanwhile, the courts have repeatedly punted, and Congress and the White House have yet to stir.

 

On Jeppesen, part 1: Our Very Public “Secrets”

Last month, in a bitterly disappointing 6-5 decision, the 9 th Circuit Court of Appeals pulled the plug on the lawsuit brought by Binyam Mohamed and four others against Boeing subsidiary Jeppesen Dataplan for assisting the CIA in delivering them into the hands of foreign governments to be tortured.

The government argued, and the court narrowly agreed, that trying the case risked revealing state secrets. But so much of what Binyam Mohamed and his co-plaintiffs endured is no longer a secret—a point vividly illustrated by this appendix to Judge Michael Daly Hawkin's forceful dissenting opinion. Judge Hawkin's chart lays out 112 pieces of publicly available information and evidence establishing that Jeppesen both operated the rendition flights and knew or should have known the purpose of the flights was to render the men to be tortured. The entries range from flight records and invoices to press clippings to official reports by the European Parliament and the government of Sweden; together, they are reminder of how much we—and the rest of the world—know about our government's supposedly secret extraordinary rendition program.

In the opinion to which he attached this damning list, Judge Hawkins wrote,

Plaintiffs have alleged facts… that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute. They have alleged in detail Jeppesen's complicity or recklessness in participating in these violations. The government intervened, and asserted that the suit would endanger state secrets. The majority opinion here accepts that threshold objection by the government, so Plaintiffs' attempt to prove their case in court is simply cut off. They are not even allowed to attempt to prove their case by the use of non-secret evidence in their own hands or in the hands of third parties.

The court's majority acknowledged that the non-secret, publicly-available evidence was probably sufficient for Mohamed and his co-plaintiffs to press at least some of their claims without the need for materials in the hands of the government. But Judge Raymond Fisher's majority opinion held that “even if the claims and defenses might theoretically be established without relying on privileged evidence, it may be impossible to proceed with the litigation because—privileged information being inseparable from non-privileged information that will be necessary to the claims or defenses—litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.”

So what are these “state secrets”? In documents submitted to the court, the government claimed the state secrets privilege—a privilege the U.S. Supreme Court has held covers “matters which, in the interest of national security, should not be divulged”—with respect to four categories of evidence:

[1] information that would tend to confirm or deny whether Jeppesen or any other private entity assisted the CIA with clandestine intelligence activities; [2] information about whether any foreign government cooperated with the CIA in clandestine intelligence activities; [3] information about the scope or operation of the CIA terrorist detention and interrogation program; [or 4] any other information concerning CIA clandestine intelligence operations that would tend to reveal intelligence activities, sources, or methods.

The majority insisted that just revealing which of these categories might be implicated by the classified government materials it examined could risk revealing state secrets. However, Fisher wrote, “We can say…that the secrets fall within one or more of the four categories identified by the government and that we have independently and critically confirmed that their disclosure could be expected to cause significant harm to national security.”

In other words, granting Binyam Mohamed and his four co-defendants their day in court might result in official confirmation, or new revelations, of the CIA's relationship with Jeppesen; of the cooperation and complicity of foreign governments in rendition and torture; about the Rendition, Detention, and Interrogation program in general; and about the CIA's practices and methods—all matters which, our government insists and the narrowest of majorities of the Ninth Circuit Court of Appeals agrees, “in the interests of national security should not be divulged.”

But when you look at the quantity of information about the treatment of Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi that is publicly available—which is vividly illustrated by Judge Hawkins' appendix and which is more than sufficient to reconstruct the basic outlines of their ordeals (as we have done, in Binyam Mohamed's case, in Chapter 4 of this report)—it seems to me the question becomes whether there isn't a point at which, in the interests of national security, the government should be forced either to officially acknowledge or challenge the growing body of public evidence.

Do we really strengthen our security and standing as a nation by letting the evidence mount that the United States repeatedly, deliberately, and egregiously violated U.S. and international laws against torture and forced disappearance, and then compounding the obvious lawlessness by failing, as we are required by the Convention Against Torture , to prosecute those who carried out these policies and to make restitution to its victims?

 

Deceiving the ICRC

One of the most disturbing documents I drew from in the new “Marching Orders” section, which covers the first year of interrogation operations in Guantánamo, is this set of minutes from a “Counter Resistance Strategy Meeting” that took place at the camp on October 2, 2002.

The minutes are famous, or infamous, for the coaching that CIA attorney Jonathan Fredman offered military lawyers and interrogators that the Torture Convention is “vaguely written” and “subject to perception,” and that “if the detainee dies, you're doing it wrong.” But that's only one of many shocking statements and exchanges from that meeting, which amounted to a 70-minute brainstorming session on how to abuse Guantánamo detainees.

For instance, there is this bit of conspiracy on how to deal with the International Committee of the Red Cross, which is mandated by the Geneva Conventions to visit POWs and civilian interned as a result of armed conflict—a mechanism meant specifically to guard against forced disappearances, extra-judicial killings, and torture and cruel, inhuman and degrading treatment. The speakers are Lieutenant Colonel Diane Beaver, Staff Judge Advocate for the interrogation task force, David Becker, the task force's chief of intelligence, and the CIA's Fredman:

LTC Beaver: We may need to curb the harsher operations while ICRC is around. It is better not to expose them to any controversial techniques. We must have the support of the DOD.

Becker: We have had many reports from Bagram about sleep deprivation being used.

LTC Beaver: True, but officially it is not happening. It is not being reported officially. The ICRC is a serious concern. They will be in and out, scrutinizing our operations, unless they are displeased and decide to leave. This would draw a lot of negative attention….

Fredman: The DOJ has provided much guidance on this issue. The CIA is not held to the same rules as the military. In the past when the ICRC has made a big deal about certain detainees, the DOD has “moved” them away from the attention of ICRC. Upon questioning from the ICRC about their whereabouts, the DOD's response has repeatedly been that the detainee merited no status under the Geneva Convention.

That this conversation was more than theoretical is clear from this paragraph from the March 28, 2003 Camp Delta Standard Operating Procedures (SOP):

17-4. Levels of Visitation

All detainees will have a level of ICRC contact designated for them. These different levels are as follows:
a. No Access: No contact of any kind with the ICRC. This includes the delivery of ICRC mail.

b. Restricted: ICRC is allowed to ask the detainee about health and welfare only. No prolonged questions.

c. Unrestricted: ICRC is allowed full access to talk to the detainee.

d. Visual: Access is restricted to visual inspection of the detainee's physical condition. No form of communication is permitted. No delivery of ICRC mail.

In the fall of 2003, an ICRC delegation visited Guantánamo and specifically protested this tiered system of access. At an October 9, 2003 meeting the JTF-GTMO Commander Major General Geoffrey Miller, Miller asked Vincent Cassard, the ICRC Team Leader, and Christophe Girod, ICRC Head of North American Delegation, “to point out the part(s) of the SOP they disagreed with.” A Memorandum for the Record summarizing that meeting records that “Mr. Girod responded by stating that the ICRC has their own SOP that they follow world-wide, which grants them unrestricted access to all areas and to all detainees. The ICRC acknowledged the JTF SOP, they will live with it but do not like it.”

According to that memorandum, during that fall 2003 visit,

The ICRC was able to visit all parts of the camps. There were 13 cases where the ICRC was not able to see a detainee, but these issues were all resolved. MG Miller emphasized to Mr. Cassard that these 13 cases were due to administrative circumstances in the camps and were not restrictions. Mr. Cassard agreed with this statement.

However,

Mr. Cassard stated that there were still four detainees that the ICRC had not been able to visit. ISN 056, ISN 558 who they had only been able to see and distribute messages to since February 2003; ISN 760; and ISN 990. MG Miller informed Mr. Cassard that ISN 760, 558 and 990 were off limits during this visit due to military necessity. The ICRC may be given access to these detainees during another visit.

Those four detainees were Abdullah Tabarak (ISN 056), Moazzam Begg (ISN 558), Abdurahman Khadr (ISN 990) and Mohamedou Ould Slahi (760); as we will see in the next section of Chapter 5, Slahi had just undergone a Rumsfeld-approved “Special Interrogation” that included death threats, a faked rendition, and threats to detain his mother in Guantánamo.

We now know there were four other detainees the ICRC was not permitted to see during that visit. Last month, Matt Apuzzo and Adam Goldman of the Associated Press reported that “ Four of the nation's most highly valued terrorist prisoners were secretly moved to Guantanamo Bay, Cuba, in 2003 , years earlier than has been disclosed, then whisked back into overseas prisons before the Supreme Court could give them access to lawyers.”

Those four were Abu Zubaydah, Abd al-Rahim al-Nashiri, Ramzi Binalshibh, and Mustafa al-Hawsawi. Piecing together flight log records, the reporters discovered that a white, unmarked Boeing 737 picked up al-Hawsawi, who was being held in the CIA's secret “Salt Pit” prison in Kabul, and flew to Szymany, Poland, where it picked up Khalid Sheik Mohammed. After delivering Mohammed to a new black site in Bucharest code-named Britelite, the plane flew on to Rabat , Morocco, where al-Nashiri, Zubaydah, and Binalshibh were being held. The plan took off from Rabat at 8:30 p.m. on September 23, 2003 with those three and al-Hawsawi aboard, delivering them to Guantánamo the following morning.

Their presence was not disclosed to the ICRC delegation; as Miller and his staff were pressing ICRC representatives in that October 2003 meeting to say that all issues of access had been resolved, he knew perfectly well that the camp population now included these four new arrivals. For years President Bush and senior administration and military officials repeatedly insisted that the ICRC had been granted full access to all of the prisoners held at Guantánamo, and the ICRC believed this was true; in its 2007 report summarizing its visits with the 14 “high value detainees” delivered to the camp from CIA black sites in 2006, the Red Cross noted, “The ICRC has been assured by the DoD that it was given full notification of and access to all persons held at Guantanamo during its regular detention visits.”

Among the 14 CIA detainees delivered to Guantánamo in the fall of 2006 were—again—Abu Zubaydah, Abd al-Rahim al-Nashiri, Ramzi Binalshibh, and Mustafa al-Hawsawi. The four had been secretly held at the naval base for seven months in 2003 and 2004 and then abruptly transferred back to CIA black sites on March 27, 2004, just as the Supreme Court was preparing to hear Rasul v. Bush , the case in which the court affirmed that Guantánamo detainees are entitled to file habeas corpus petitions.

We subtitled Chapter 1 of The Torture Report “Creating the Space for Torture,” but in many ways that is the theme of the entire torture story. The newest section of the report, “Marching Orders,” includes testimony by Colonel Lawrence B. Wilkerson, Chief of staff to then-Secretary of State Colin Powell, that by August 2002 he had come to understand “that the deliberate choice to send detainees to Guantánamo was an attempt to place them outside the jurisdiction of the U.S. legal system.” The choice to keep some of those who were held there, and all who were held in secret in CIA black sites and foreign prisons, from being seen by the ICRC suggests even worse: like the October 2, 2002 meeting between the CIA's Jonathan Fredman and GTMO lawyers and interrogators, it suggests a conscious conspiracy to engage in, and conceal, torture.

 

"Marching Orders"

Today we post “Marching Orders,” which is Part 2 of Chapter 5, “The Battle Lab.”

In Part 1 of this Chapter we followed the seven-week “special interrogation” of Mohammed al Qahtani in Guantánamo Bay 's Camp X-Ray at the end of 2002. This new section, which begins with the arrival of the first planeload of prisoners in Guantánamo at the beginning of 2002 and spans the facility's first year, looks at how two commanders who were getting their marching orders directly from the White House sought to turn the camp into a “Battle Lab” for abusive interrogation techniques, even as the evidence was mounting that many of the detainees were of no intelligence value whatsoever, and as wave after wave of servicemen and women, officers, military lawyers, FBI agents—indeed, almost everyone outside a tight circle of zealous decision makers and inexperienced interrogators—warned that the techniques we were employing were ineffective, first of all, and secondly were the very ones we had long denounced elsewhere as torture.

As the length of this new section suggests, this is one of the most well-documented episodes of the torture program; much of what we know, in fact, comes from two major official investigations, both of which I believe are essential reading for all Americans: the May 2008 report by the Department of Justice's Inspector General on FBI accounts of abuse in Guantánamo, Afghanistan, and Iraq , and the November 2008 report by the Senate Armed Services Committee on the treatment of detainees in U.S. custody. While the events these reports document are discouraging and often shameful, the reports themselves ought to be both a source of pride—in fact, we are seeking to illuminate this dark chapter in our recent past—and a foundation for a more comprehensive public reckoning.

In our public reckoning, I believe we should pay particular attention, and particular tribute, to the overwhelming number of Americans who recognized these abusive techniques for what they were and who objected, protested, and fought to prevent, and then to end, these illegal and ill-advised interrogations. There are many such men and women in this new section.

 

“The Battle Lab”

Today we post Part 1 of Chapter 5 of the Torture Report, titled “The Battle Lab,” which looks at the development of a systematic torture program aimed at breaking detainees in the custody of the U.S. military in Guantánamo Bay , Cuba . In this first section, “A Special Project,” we take a long look at the lab's signature experiment—the 50-day interrogation of Mohammed al Qahtani from November 23, 2002 through January 11, 2003.

As I was working on this section, I kept thinking of this sentence from the declaration of former GTMO prosecutor Lt. Col. Darrel Vandeveld, quoted in the concluding section of Chapter 4:

“I lack the words to express the heartsickness I experienced when I came to understand the pointless, purely gratuitous mistreatment of Mr. Jawad by my fellow soldiers.”

Mr. Jawad is Mohammed Jawad, the young (underage when he arrived at Guantánamo) detainee who was subjected to the military's “frequent flyer” sleep deprivation program. As we'll see throughout Chapter 5, “pointless” and “purely gratuitous” does not mean thoughtless or spontaneous, and nowhere is that clearer than in the interrogation of Mohammed al Qahtani, in which seven weeks of surpassing pointlessness and gratuitousness was the culmination of months of carefully designed, Washington-approved cruelties and humiliations.

Heartsickness indeed.

 

Where We Are Now

In June, while we were marking Torture Awareness month with our Document a Day feature, the U.S. continued its undignified slink away from accountability—most notably when the Supreme Court refused to hear an appeal in Maher Arar's lawsuit against the United States for his rendition and torture.

Arar, a Canadian citizen and innocent victim of mistaken identity, was detained at JFK airport in 2002 and then sent to Jordan , where he was brutally abused for almost a year. Shamed by revelations that information provided by its own security services had contributed to his ordeal, the Canadian government has conducted a full investigation, issued a formal apology, and awarded Arar substantial damages. By contrast, the Bush and Obama administrations have both fought to keep his case out of U.S. courts, arguing it could damage diplomatic relations and national security; Obama's acting solicitor general even argued that the case could call into question “the motives and sincerity of the United States officials who concluded that petitioner could be moved to Syria,” as if that, too, could somehow harm the country. Coming at the end of Arar's futile quest for justice in the U.S. , the symbolism of our nation's highest court literally refusing to listen to his case couldn't be more clear.

I will be catching up on other recent developments in the days ahead, and next week we'll begin posting Chapter 5 of the Report, which follows the torture of Mohammed al-Qahtani and traces the roots of the U.S. military's programmatic abuse inside Guantánamo.

Meanwhile, Glenn Greenwald, one of the Torture Report's expert contributors, and I took a moment during Torture Awareness month to record some reflections on the Torture Report and the ongoing struggle for accountability:
Please note that by playing this clip You Tube and Google will place a long-term cookie on your computer. Please see You Tube's privacy statement on their website and Google's privacy statement on theirs to learn more. To view the ACLU's privacy statement, click here.

Document a Day: The Secret Beginning

We end this month with the still-classified document that launched the torture program, President Bush’s September 17, 2001 directive giving the CIA the authority to disappear detainees and interrogate them in secret prisons. The directive literally created the extralegal space for the CIA to conduct its experiments with torture.

The directive remains one of the most closely guarded torture documents. All we know about it comes from today’s documents from the ACLU’s Freedom of Information Act litigation, where the government has thrown every argument it can think of at the court to keep the directive secret.

The first document is an affidavit from a CIA agent describing the directive generally as a memorandum “from President Bush to the Director of the CIA pertaining to the CIA’s authorization to detain terrorists” and “regarding a clandestine intelligence activity.”

The second is a transcript of a surreal closed-door court hearing on the directive, in which the government’s attorney goes so far as to claim that even the font of the directive is classified. 

 

 

Documents:

 

Document a Day: Layers of Concealment

Although we will never see the 92 interrogation videotapes that the CIA destroyed in 2005, last year a federal judge ordered the CIA to fill the gap left by the destruction by releasing any records describing the contents of the tapes. Unsurprisingly, the CIA has refused to release almost all of those records, the bulk of which are the cables that flew back and forth between the CIA headquarters and the "black site" in Thailand where CIA interrogators were torturing Abu Zubaydah and Abd al-Rahim al-Nashiri.

When government agencies seek to withhold information a court has ordered released under the Freedom of Information Act, they are required to provide documents listing and briefly summarizing the records in question. Today's documents include a page from the CIA's index of hundreds of cables that it is withholding and just one of the accompanying teaser descriptions.

They are tantalizing even in this minimal form. One describes a top-secret memo "which summarizes details of waterboard exposures from the destroyed videotapes." Another describes a 59-page "Logbook of Abu Zubaydah Interrogation."

The sheer volume of the cables that the CIA refuses to release—nearly 600 cables from the black site to CIA headquarters alone over an eight-month period in 2002—is evidence of how closely senior officials in Washington micromanaged the interrogation of Abu Zubaydah and others in secret CIA prisons thousands of miles away.

 

 

Documents:

 

Document a Day: Obstructing Justice Overseas

With more of those who were criminally mistreated turning to courts in their own countries for recognition of their ordeals, the efforts of U.S. officials to suppress evidence and escape accountability now extend overseas.

These seven paragraphs summarize the contents of 42 documents the CIA sent to British intelligence agencies describing the interrogation of Binyam Mohamed in Pakistan in 2002. The paragraphs were part of the written opinion of a British court which concluded that the “sleep deprivation, threats, and inducements” Mohamed was subjected to during the interrogation “would clearly have been in breach” of the Convention Against Torture.

The United States government not only successfully fought the public release of those 42 documents, it threatened to disrupt the intelligence-sharing relationship between the U.K. and the U.S. if these summary paragraphs appeared in the court's published opinion. It took a British appeals court's ruling—in a case it declared went to the heart of “democratic accountability and the rule of last itself”—to force the restoration of the paragraphs to the opinion more than a year later.

 

 

Documents:

 

Document a Day: More “Missing” Evidence

The CIA wasn't the only agency to videotape interrogations—or to make tapes disappear.

In 2007, during the trial of alleged would-be dirty-bomber Jose Padilla, prosecutors admitted they had not turned over to his defense team all of the videotapes the U.S. military had recorded of his interrogations—and that the one tape it had not produced was the recording of the final interrogation session before Padilla was finally allowed to meet with attorneys after almost two years in incommunicado detention in a naval brig in North Carolina. By then the government had abandoned the dirty bomb plot allegation, a plot it had constructed and supported through serial torture.

This letter from the Defense Intelligence Agency shrugs off the “disposal or destruction” of the DVD, insisting that when its lawyers informed the trial judge that “the DVD could not be located” “the Judge made no adverse comment.”

 

 

Documents:

Letter from DIA re missing Padilla interrogation tape 12/6/07 (1-page document, third page of the document)

 

Document a Day: The Waterboarding Tapes We’ll Never See

When he ordered the government to release images of detainee abuse, U.S. District Judge Alvin K. Hellerstein noted:

[T]he pictures are the best evidence of what happened, better than words, which might fail to describe, or summaries, which might err in their attempt to generalize and abbreviate.

As we saw yesterday, the battle over the visual documentation of abuse goes on, but the CIA has ensured that at least one part of that documentation will never be seen. In 2002, the CIA videotaped its interrogations of Abu Zubaydah and Abd al-Rahim Al Nashiri, including its use of waterboarding and the other White House approved “enhanced interrogation techniques.”

In 2005, however, the CIA deliberately destroyed those videotapes—92 in total. The document on the left is from an eight-page inventory of the tapes to be destroyed; the cable on the right is the confirmation CIA headquarters requested that the destruction was completed.

An internal CIA email the day after the destruction quotes CIA Director of Operations Jose Rodriguez as saying “The heat from destroying is nothing compared to what it would be if the tapes ever got into public domain….[T]aken out of context, they would make us look terrible; it would be ‘devastating' to us.”

 

 

Documents:

 

Document a Day: What We’ve Seen, What We Haven’t Seen

Still shocking six years after they first were leaked to the media, the images of prisoner abuse at Abu Ghraib prison that a whistleblowing soldier turned over to military criminal investigators in January 2004 are only a fraction of the torture photographs and videotapes known to exist. Although federal courts adjudicating the ACLU's Freedom of Information Act lawsuit have repeatedly ordered the images released, the Department of Defense continues to suppress this most graphic, direct evidence of torture.

The still-secret photographs include images of torture and abuses at detention sites in both Afghanistan and Iraq. Quoting army investigative files, the U.S. government admitted in its petition asking the Supreme Court to review the Appellate Court decision ordering their release that “the photographs include an image showing several soldiers posing near standing detainees who are handcuffed to bars with ‘sandbags covering their heads' while a soldier holds a broom as if “sticking [its] end * * * into the rectum of a restrained detainee, an image of a soldier who appears to be in the process of striking ‘an Iraqi detainee with [the butt of] a rifle,' and several other images that show soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees.”

That petition was filed by the Obama administration in August 2009—just a few months after President Obama had announced he would not oppose the appeals court ruling. Congress has since joined the cover-up, passing a law supporting the suppression of the photos.

 

 

Documents:

 

Document a Day: I Believe the Technique Used Was Acceptable

A graphic example of the shocking lack of accountability for the gravest human rights abuses, these documents follow the murder of Iraqi general Abed Hamed Mowhoush in US custody in December 2003.

Mowhoush died during an interrogation in which he was forced into a sleeping bag that was bound with an electrical cord. The autopsy report on the left lists the cause of death as “asphyxia due to smothering and chest compression” and rules it a homicide. The lone interrogator disciplined for the murder was reprimanded and fined $6,000; the document on the right is his statement protesting his letter of reprimand. The interrogator insists he was using what he believed were approved SERE-based techniques; “the ‘sleeping bag technique' is a stress position I considered authorized by the [Coalition Joint Task Force] in their memo “CJTF-7 Interrogation and Counter-Resistance Policy.” He argues that “the sleeping bag had been used on prior occasions on other detainees without incident” and says, “while I have not examined the autopsy report, I do not believe that the sleeping bag was responsible for his death.”

This prompts a handwritten comment: “Death was from asphyxiation! I expect better adherence to standards in the future!”

 

 

Documents:

Autopsy report, the General (pdf pages 9 - 16)

 

Document a Day: Generic Torture

Under the breezy cover note “Dan, a generic description of the process,” this “Background Paper on CIA's Use of Interrogation Techniques” is one of the most chilling torture documents excavated to date.

After the Abu Ghraib photographs surfaced and the Washington Post published a redacted version of the August 1, 2002 Bybee/Yoo torture memo in 2004, Jack Goldsmith—Jay Bybee's replacement as the head of the Justice Department's Office of Legal Counsel—announced he was withdrawing the OLC's 2002 legal opinions. “Dan” is Dan Levin, who served as Acting Assistant Attorney General for the OLC from July 2004 through February 2005 and who was charged with creating replacement memos that would maintain the legality of the Bush torture program.

This document was prepared by the CIA at Levin's request to show how the CIA used the 10 approved “Enhanced Interrogation Techniques” in combination in a typical interrogation. Stating that “the goal of interrogation is to create a state of learned helplessness and dependence,” the memo describes the process from rendition through a 30-day, Washington-approved torture regimen in matter-of-fact, clinical detail.

 

 

Documents:

 

Document a Day: Looking for Cover

As protests over prisoner abuse mounted, top Bush administration officials produced new rounds of self-serving documents and legal opinions aimed both at preserving the torture program and protecting themselves from possible prosecution.

In this heavily-redacted June 4, 2004 memorandum from CIA Director George Tenet to National Security Advisor Condoleezza Rice, submitted the day after President George Bush announced Tenet's resignation, Tenet writes that the Justice Department authorized the CIA to use Enhanced Interrogation Techniques starting in September 2002; that EITs were used only on “the most hardcore, senior terrorist figures,” and that Congress had been fully briefed on the torture. The first two statements are blatantly untrue: the White House-orchestrated, Justice Department-approved torture of Abu Zubaydah occurred earlier in 2002; and the approximately 100 detainees who spent time at secret CIA blacksites included many who were far from “senior terrorist figures.” Here is an account by one who was held for a time in the CIA's “dark prison” in Afghanistan and who was eventually released without charge from Guantánamo. The extent to which Congress was briefed on the Bush administration's torture program remains hotly contested.

 

 

Documents:

 

Document a Day: Not Even if Ordered

The FBI wasn't alone in rejecting torture. One of the most dramatic and stirring of all the torture documents, this Statement for the Record from the Navy's top lawyer, Alberto Mora, chronicles a rebellion within the Defense Department against the  Donald  Rumsfeld-approved, Survival,  Evasion  Resist  Escape (SERE)-based torture methods.

When Naval Criminal Investigation Services (NCIS) agents first heard reports of  Mohammed  al Qahtani's interrogation on December 17, 2002, Mora relates, they “regarded such treatment as unlawful and in violation of American values.” In a meeting the following day, NCIS Director David Brant announced that  N avy interrogators “would not engage in the abusive practices even if ordered.”

Mora himself went face-to-face with Defense Department General Counsel Jim Haynes, and prepared a memo concluding that many of the techniques Rumsfeld had approved violated U.S. and international laws banning torture and cruel, inhuman and degrading treatment. When Mora threatened to sign and circulate the memo unless the use of the techniques was suspended, Rumsfeld blinked, officially withdrawing his December 2, 2002 authorization.

 

 

Documents:

 

Document a Day: A Repentant Persecutor

Another ringing denunciation from the inside — this one a declaration by a Guantánamo military prosecutor recounting his dawning awareness of the physical and due process abuses those he was assigned to prosecute had endured.

Learning that one of those whose cases he was to try, an Afghan youth named Mohammad Jawad, had attempted to kill himself “by banging his head repeatedly against one of his cell walls,” Lt. Col. Darrel Vandeveld discovered records that showed Jawad had been moved from cell to cell 112 times in two weeks as part of a “sleep deprivation program popularly referred to as the ‘frequent flyer' program.” “I lack the words to express the heartsickness I experienced when I came to understand the pointless, purely gratuitous mistreatment of Mr. Jawad by my fellow soldiers,” Vandeveld states.

Deciding that he “could no longer ethically prosecute Mr. Jawad, or, in good conscience, serve as a prosecutor” for the Office of Military Commissions, Vandeveld—referring to himself as Jawad's “former prosecutor and now-repentant persecutor”—resigned and submitted this devastating affidavit in support of Jawad's habeas corpus petition.

 

 

Documents:

 

Document a Day: Interrogators Ordered This Treatment

This brief but vivid email sent by an FBI agent posted to Guantánamo gives a glimpse of the SERE techniques in action, and leaves little doubt that the techniques Albert D. Biderman described were in wide use at the facility and could induce suffering that rivals brutal physical tortures. It contains some of the most indelible images in all the torture documents: detainees shackled hand and foot in fetal positions to the floor, some lying in their own excrement; a barefoot detainee shivering in a deliberately refrigerated room; a detainee in an unventilated, overheated cell “almost unconscious on the floor, with a pile of hair next to him” who had “apparently been literally pulling his own hair out through the night.”

 

 

Documents:

 

Document a Day: Old Torture Made New

The torture techniques CIA and Defense Department interrogators used have a specific pedigree: they were developed and promoted by two psychologists who had worked for the military's Survival, Evasion, Resistance, Escape (SERE) programs, where U.S. soldiers are subjected to torture techniques perfected by such countries as China, North Korea, and the Soviet Union.

In this January 15, 2003 memo, two SERE trainers report on their trip to instruct Guantánamo interrogators on “the theory and application of the physical pressures utilized during our training evolutions.” Their instruction began, they report, with “an in-depth class on Biderman's Principles,” and the memo reproduces this chart of “Coercive Management Techniques” entitled “Biderman's Chart of Coercion.”

Biderman is Albert D. Biderman, whose September 1957 paper “Communist Attempts to Elicit False Confessions From Air Force Prisoners of War” contains the original chart in a more legible form. Biderman showed how Chinese and Korean interrogators used techniques including sleep deprivation, darkness or bright light, insults, threats, and exposure far more than physical force to break prisoners.

 

 

Documents:

 

Document a Day: “If you think this is tough . . .”

These four pages of handwritten notes from May 28 of an unknown year confirm that Mohammed al Qahtani’s brutal interrogation in Guantánamo—which we discussed yesterday—was no isolated incident. The notes state that Guantánamo’s Camp X-Ray “was used for harsh treatment,” that al Qahtani “ended up in the hospital” as a result of his interrogation at Camp X-Ray, and that al Qahtani was not alone: “Prisoners other than #63 [al Qahtani] went through [a] similar IP,” or interrogation protocol.

After describing the use of Camp X-Ray for harsh interrogations, the notes contain this chilling and unattributed quote: “if you think this is tough—you should see what’s happening in Afghanistan.”

The document also hints at one of the larger narratives underlying the military's use of torture and abuse: the FBI vigorously objected to the military's abusive techniques, stating that they are ineffective and “get out of control without strict guidelines.” Those objections, and the decision of the FBI as a whole to prohibit its agents from participating in abusive interrogations, are documented in great detail in this May 2008 report (part 1, 2, 3, 4) by the DOJ's Office of the Inspector General.

 

 

Documents:

Handwritten investigation notes, 5/25/?? (document starts on page 13)

 

Document a Day: The Plan Has Been Signed Off On

This email, dated October 1, 2002, announces the beginning of the interrogation of Mohammed al Qahtani in Guantánamo. As with the CIA's torture of Abu Zubaydah, the Defense Department's interrogators followed a plan that relied on techniques the United States had long recognized as torture, a plan closely monitored by Defense Secretary Donald Rumsfeld.

In March 2006, Time magazine published a leaked hour-by-hour log of 49 days of the ensuing interrogation—a document that records in harrowing detail the combined effects of severe sleep deprivation and a relentless assault of physical pressure and psychological humiliations. The entire process was carefully monitored by doctors, who repeatedly gave the go ahead for torture to resume, even after al Qahtani had been rushed to a hospital.

In January 2009, Susan Crawford, the convening authority of military commissions in Guantánamo, told Bob Woodward in an interview, “We tortured Qahtani,” and that is why she refused to refer his case for prosecution.

 

 

Documents:

 

Document a Day: Orchestrated Torture

In October 2006, four and half years after Abu Zubaydah disappeared into a CIA “black site” in Thailand, the International Committee of the Red Cross was finally allowed to visit him and 13 other “high value detainees the Bush administration had recently transferred from secret prisons to Guantánamo. The ICRC's subsequent report contained this account by Abu Zubaydah of his torture in Thailand.

We now know not only that his account was accurate and unembellished, but that the torture was approved and orchestrated practically blow by blow by the White House. Abu Zubaydah's account should be read side-by-side with this August 1, 2002 memo written by the Office of Legal Counsel's John Yoo (and signed by Assistant Attorney General Jay Bybee) that specifically describes every one of the terrors he describes legal—as it is in this video clip featuring David Cole and Art Spiegelman at an ACLU-PEN American Center “Reckoning With Torture” event in New York City in October 2009.

 

 

Documents:

 

Document a Day: Calling the Illegal "Legal"

This undated summary of legal advice provided by the Justice Department’s Office of Legal Counsel (OLC) chronicles the systematic manner in which government lawyers authorized abusive interrogations for both the CIA and Department of Defense.

As we have seen in the past few days, the Department of Defense’s interrogation program, though it did not involve waterboarding, used many other “Enhanced Interrogation Techniques” and was every bit as brutal in its impact—and undoubtedly much more widespread.

Note not only the similarity of techniques, but also the OLC's consistent advice regarding supposed defenses to the use of torture.  According to the OLC, an interrogator who engaged in torture might claim that he was acting out of necessity or self defense.  Those defenses are specifically prohibited by Article 2 of the Convention Against Torture: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

 

 

Documents:

 

Document a Day: “We Need to Take a Deep Breath”

This remarkable email chain is from April 14, 2003. The original message, from a military interrogator in Iraq to all concerned (ALCON), announces “The gloves are coming off gentlemen regarding these detainees, [redacted] has made clear it wants these individuals broken,” and asks for “wish lists” of interrogation techniques. Someone forwards this message, commenting simply, “Sounds crazy, but we’re passing this on.”

The thread is picked up by a military interrogator who insists those now in U.S. custody “understand force, not psychological mind games or incentives,” and advocates the use of several techniques used in the U.S. military’s SERE training programs.

In the last message in the chain—another of the countless examples in the documents where Americans raised objections to what they were seeing—the writer begins, “As for ‘the gloves need to come off…’ we need to take a deep breath and remember who we are.” This final email in particular is a must-read.

 

 

Documents:

 

Document a Day: Tortured to Death

In October, 2002, the lead lawyer for the CIA's Counterterrorism Center told U.S. military personnel at Guantánamo that the laws banning torture are “vaguely written” and that torture is “subject to perception.” Notes from that meeting quote Jonathan Fredman as saying, “If the detainee dies, you're doing it wrong.”

More than 100 detainees have died in U.S. custody in Guantánamo, Afghanistan, and Iraq. The U.S. military itself called 34 of these confirmed or suspected homicides. This is one of them: a 47 year-old Iraqi man whose autopsy report concludes “The severe blunt force injuries, the hanging position, the obstruction of the oral cavity with a gag contributed to this individual's death. The manner of death is homicide.”

This image is in fact a painting by the artist Jenny Holzer—a remarkable example of the many ways in which American citizens are pressing for accountability for torture. The actual, complete autopsy report is here.

 

 

Documents:

 

Document a Day: Abuse as Standard Operating Procedure

These two pages are from a Department of Defense investigation into an incident in which a 17 year-old Iraqi youth suffered a broken jaw during interrogations in Iraq in December 2003. The boy wasn't even suspected of wrongdoing; he'd been picked up as a “sub-target,” defined then as “male Iraqi citizens found inside a target's home.” As the file makes clear, detainees at this facility at the time were being “routinely and systematically abused,” bombarded with heavy metal music, deprived of sleep, doused with cold water, hooded, and beaten.

Calling the broken jaw, “an intentional act,” the investigating officer found “evidence that suggests the 311th [Military Intelligence] personnel and/or translators engaged in physical torture of detainees.” The investigator recommended that the company commander and “anyone else that was involved” face consequences for “allowing abuse of detainees as standard operating procedure,” but there is no evidence that anyone was ever disciplined.

 

 

Documents:

Memorandum of Record re broken jaw incident, December 2003 (documents are on pages 5 and 22)

 

Document a Day: The “Gun and Drill” Incident

These pages are from the May 7, 2004 report of the CIA's Inspector General on the agency's Rendition, Detention, and Interrogation program, which even in its still heavily-redacted form is one of the most important documents unearthed to date. This passage summarizes the threatened execution of Abd Al-Rahim Al-Nashiri by a CIA agent in a secret CIA prison in Thailand. Death threats are specifically prohibited under international and U.S. laws banning torture. But when the CIA's Inspector General referred this case to the Justice Department that year, the agency received assurances from the Justice Department that it would not prosecute.

In August 2009, Attorney General Eric Holder asked Special Prosecutor John Durham to expand his criminal investigation into the destruction of videotapes of CIA interrogations to include incidents like this one, where CIA agents used interrogation techniques beyond those the Bush administration lawyers tried to argue were legal. Nine months later, Durham has yet to announce whether this or any other case will be referred for prosecution.

 

 

Documents:

“Gun and drill” incident from CIA OIG report, May 2004 (document starts on page 40)

 

Document a Day: Early Reports of Abuse

We're calling this A Document a Day, and for the most part it will be just that, but we begin with four short incident accounts by American servicewomen and men who stumbled on manifestations of much larger system of abuse: the one shown here, recorded by a military translator in Kandahar, Afghanistan, January 2002; this one from a US Army interrogator in Guantánamo; this one from an MP stationed in Iraq; and this one from an Iraq war veteran.

Serving in detention facilities across the globe, these soldiers weren't in a position to know whether what they were seeing was part of a pattern or the product of official policy. But they were certain what they were seeing was wrong.

 

 

Documents:

 

Coming in June: A Document a Day

Throughout June, we'll be observing Torture Awareness Month by posting a Document a Day here on The Torture Report Diary.

In 1997, the United Nations commemorated the 10 th anniversary of the enactment of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by declaring June 26 th the International Day of Support of Victims of Torture.

Today, on the United Nations International Day in Support of Victims of Torture, the United States declares its strong solidarity with torture victims across the world. Torture anywhere is an affront to human dignity everywhere. We are committed to building a world where human rights are respected and protected by the rule of law.

Freedom from torture is an inalienable human right. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, ratified by the United States and more than 130 other countries since 1984, forbids governments from deliberately inflicting severe physical or mental pain or suffering on those within their custody or control. Yet torture continues to be practiced around the world by rogue regimes whose cruel methods match their determination to crush the human spirit. Beating, burning, rape, and electric shock are some of the grisly tools such regimes use to terrorize their own citizens. These despicable crimes cannot be tolerated by a world committed to justice.

Notorious human rights abusers, including, among others, Burma, Cuba, North Korea, Iran, and Zimbabwe, have long sought to shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors….

The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment….

A year later, two months after 60 Minutes IIand The New Yorkerbroke stories featuring the Abu Ghraib torture photos, President Bush again asserted the U.S.'s “commitment to the worldwide elimination of torture,” this time insisting

America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction….

The United States also remains steadfastly committed to upholding the Geneva Conventions, which have been the bedrock of protection in armed conflict for more than 50 years. We expect other nations to treat our service members and civilians in accordance with the Geneva conventions. Our Armed Forces are committed to complying with them and to holding accountable those in our military who do not….

America supports accountability and treatment centers for torture victims. We stand with the victims to seek their healing and recovery, and urge all nations to join us in these efforts to restore the dignity of every person affected by torture.

Tens of thousands of pages of formerly-secret government documents leave no doubt that after September 11, 2001 the United States violated domestic and international bans on torture and cruel, inhuman and degrading treatment, committing abuses we shielded from the eyes of the world “by staging elaborate deceptions and denying access to international human rights monitors.” Few of these abuses have been properly investigated and still fewer prosecuted, and there is virtually no public conversation whatsoever about our obligation under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment to seek the healing and recovery of those we have abused.

I am working away on Chapter 5 of the Report; meanwhile I've gone back through my files and through the piles of documents and pulled some of the most compelling pieces of the documentary record. Stop by this space throughout Torture Awareness Month as we post a Document a Day.

'We Cannot Sweep These Allegations Under the Carpet'

From London now comes news that incoming Foreign Secretary William Hague will order an official investigation into whether British intelligence agents were complicit in Binyam Mohamed’s torture.

As the BBC and the Guardian reported late last week, Hague will be appointing a judge to lead the inquiry, which will examine whether U.K. government officials knew about or participated in the mistreatment of Mohamed and several other British-based former detainees. As Hague explained in announcing the plan,

So far [British government] ministers have stuck to the mantra that ‘we never condone, authorize, or co-operate in torture.’ But this does not dispel any of the accusations. If anything, there is now a direct and irreconcilable conflict between such ministerial assurances and the account given by Mr. Mohamed. That must be resolved.

While the previous Labor party administration frequently cited national security concerns in seeking to withhold information from the courts about torture allegations, Hague insisted that the U.K.’s security is best protected by dealing directly with allegations of abuse:

We cannot sweep these allegations under the carpet. Until the full facts are known, Britain’s name and reputation will be dragged through the mud – not least by the terrorists and extremists who will exploit these allegations for their own propaganda. It is vital to remember that torture does not help us defeat terrorists; it helps them to try to justify their hostility towards us.

Hague’s announcement followed the publication last week of a “Coalition agreement” outlining the agenda of the incoming Tory–Liberal Democrat government and picked up on pre-election calls by both parties for an official government investigation into Binyam Mohamed’s allegations.

The inquiry Hague will order reportedly could include immunity for former intelligence service agents who come forward with evidence. “Although immunity deals are rarely granted to those who are complicit in torture, lawyers who advised Tory shadow ministers in the run-up to the election concluded that it is possible,” the Guardian reported. “Such a deal would be of clear benefit to the two M15 and M16 officers who are currently at the centre of a Scotland Yard investigation into their alleged criminal wrongdoing.

Meanwhile, that same report suggests that following the British appeals court earlier this month barring the use of secret evidence in a civil suit brought by Mohamed and five others who were subject to rendition and torture, “Government lawyers are expected to offer out-of-court settlements worth millions of pounds” in the cases.

As we await further developments, it’s worth reflecting on the widening difference between the U.K. and the U.S. on the question of accountability for torture. In stark contrast to the Obama administration’s post-election “Don’t Look Back” posture, Britain’s new leaders appear determined to do what they said must be done when they were the minority, opposition parties. And no one, as far as I can tell, is accusing them of doing anything other than upholding their principles.

Australia, Too, Moves Toward Accountability

England isn’t alone in rejecting attempts to suppress the record of its government’s complicity in torture. A few months ago, an appeals court in Australia likewise opened the way to a public airing of the involvement of Australian intelligence services in the rendition and torture of one of its citizens.

On October 4, 2001, three days before the official commencement of hostilities in Afghanistan, Mamdouh Habib was pulled off a bus in Pakistan, detained and interrogated for more than a month, and then flown to Egypt and interrogated there for several months before being delivered to Bagram and ultimately Guantánamo. As The Washington Post’s Dana Priest and Dan Eggen first reported in January, 2005, Habib’s habeas corpus petition detailed how, after being questioned by Americans for three weeks in Pakistan, he was taken to an airfield where he was beaten by several people who spoke American-accented English. The men cut off his clothes. One placed a foot on his neck “and posed while another took pictures.”

He was then flown to Egypt…and spent six months in custody in a barren, 6-foot-by-8-foot cell, where he slept on the concrete floor with one blanket. During interrogations, Habib was “sometimes suspended from hooks in the wall” and repeatedly kicked, punched, beaten with a stick, rammed with an electric cattle prod and doused with cold water when he fell asleep, the petition says.

He was suspended from hooks, with his feet resting on the side of a large cylindrical drum attached to wires and a battery, the document says. “When Mr. Habib did not give the answers his interrogators wanted, they threw a switch and a jolt of electricity” went through the drum,” it says. “The action of Mr. Habib ‘dancing’ on the drum forced it to rotate, and his feet constantly slipped, leaving him suspended by only the hooks on the wall . . . This ingenious cruelty lasted until Mr. Habib fainted.”

At other times, the petition alleges, he was placed in ankle-deep water that his interrogators told him “was wired to an electric current, and that unless Mr. Habib confessed, they would throw the switch and electrocute him.”

Habib says he gave false confessions to stop the abuse.

The same day The Washington Post ran this story, the U.S. government announced that Habib would be released from Guantánamo, and he returned home to Australia—where he had been a citizen for more than 25 years—on October 28, 2005. Like Binyam Mohamed in the U.K., Habib subsequently filed a lawsuit against the Commonwealth of Australia “for aiding, abetting and counseling his torture and other inhumane treatment by foreign officials while he was detained in Pakistan, Egypt, and Afghanistan and at Guantánamo Bay.” Specifically, Australian officials stand accused of participating in his initial interrogation in Pakistan, supporting his rendition to Egypt, and interrogating him at least 12 times at Guantánamo.

The Australian government moved to have the lawsuit dismissed, invoking the common law “act of state doctrine,” which bars courts from deciding the legality of actions by foreign governments; it argued that trying Habib’s case would require the court to decide whether the United States, which was primarily responsible for the acts the Australian officials stand accused of abetting, had violated laws prohibiting torture and enforced disappearance. Last June, a lower court accepted this argument and ordered the case dismissed. But Habib’s attorneys appealed, and earlier this year an appeals court reversed that decision, ruling emphatically that the act of state doctrine “has no application where it is alleged that Commonwealth officials have acted beyond the bounds of their authority under Commonwealth law.”

While Australian courts are generally barred from judging the conduct of foreign governments, the Justices found, they have an essential obligation to judge the constitutionality of actions by Australia’s own legislative and executive branches. “The heart of the matter is that Mr. Habib alleges before a Court exercising federal jurisdiction that Commonwealth officers acted outside the law,” Justice Nye Perram wrote in his opinion (an opinion that, ironically, draws heavily on U.S. court precedents). “The justiciability of such allegations is axiomatic and could not be removed by Parliament still less the common law.”

This is emphatically the case, the three judge panel agreed, when the allegations involve grave human rights abuses like torture. As Chief Justice Michael Black noted in his concurring opinion,

Torture offends the ideal of a common humanity and the Parliament has declared it to be a crime wherever outside Australia it is committed. Moreover, and critically in this matter, The Crimes (Torture) Act is directed to the conduct of public officials and persons acting in an official capacity irrespective of their citizenship and irrespective of the identity of their government…. [It] reflects the status of the prohibition against torture as a peremptory norm of international law from which no derogation is permitted and the consensus of the international community that torture can never be justified by official acts or policy.

...[C]onsistently with Australia’s obligations under the Torture Convention, the Parliament has spoken with clarity about the moral issues that may confront officials of governments, whether foreign or our own, and persons acting in an official capacity. It has proscribed torture in all circumstances, answering in the negative the moral and legal questions whether superior orders can absolve the torturer of individual criminal responsibility and whether, in extreme circumstances, torture may be permissible to prevent what may be apprehended as a larger wrong.

So once again, in a powerful display of the principle of the separation of powers, the courts of another democratic ally have rejected an attempt by the executive branch to hide its role in the torture of detainees in U.S. custody from public scrutiny. In this country, which is primarily responsible for the torture but where the executive branch routinely invokes secrecy privileges and where courts often defer and where Congress has even toyed with granting immunity to torturers, we could learn—or relearn—a thing or two.

Secrecy Loses Again in the U.K.

This week Binyam Mohamed moved another step closer to a public reckoning for his ordeal when a British appeals court ruled the government cannot rely on secret evidence to defend itself in a damages suit brought by Mohamed and five other U.K.-based former Guantánamo detainees.

Bisher Al Rawi , Jamil El Banna, Richard Belmar, Omar Deghayes, Martin Mubanga, and Binyam Mohamed are suing the British secret services and the Foreign and Home Offices for complicity with the U.S. in their detention, rendition, and torture. As the case moved toward trial, the defendants told the court that they had "as many as 250,000 potentially relevant documents," some 140,000 of which they would likely try to shield from public release on national security grounds. They asked that they be allowed to present these documents in secret to the court without ever sharing them with the six men and their attorneys, and that the trial itself include secret proceedings which they would likewise be barred from attending. Under the government's proposal,

[D]uring the period prior to trial, there would be parallel open and closed pleadings, parallel open and closed disclosure and inspection, parallel open and closed witness statements, and parallel open and closed directions hearings. Similarly, at the trial, the hearing would be in part open and in part closed, no doubt with some documents and witnesses being seen and heard in the open hearing and others in the closed hearing (and some witnesses conceivably giving evidence at both hearings). After trial, there would be a closed judgment and an open judgment…

When the presiding judge approved the British government's proposal, Binyam Mohamed and his co-plaintiffs appealed, and this week an appeals court reversed the lower court's decision , ruling "firmly and unambiguously" that the lower court had no authority to institute such a procedure.

Under the common law, a trial is conducted on the basis that each party and his lawyer sees and hears all the evidence and all the argument seen and heard by the court. This principle is an aspect of the cardinal requirement that the trial process must be fair, and must be seen as fair; it is inherent in one of the two fundamental rules of natural justice, the right to be heard (or audi alterem partem, the other rule being the rule against bias or nemo iudex in causa sua).

The Lord Justices pointed out that there was a well-established process for dealing with government requests to withhold documents on national security grounds: judges must weigh the public interest which demands that the evidence be withheld against the public interest in open justice, and if "the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted."

In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by the court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim, unless (perhaps) all parties to the claim agree otherwise. At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial.

Moreover, Lord David Neuberger warned, failing to adhere to this minimum requirement would ultimately undermine any advantage the government might gain by pursuing such a strategy.

While considering practical considerations, it is helpful to stand back and consider not merely whether justice is being done, but whether justice is being seen to be done. If the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done. The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.

So Binyam Mohamed will be able to press his claim that the British government was complicit in his rendition and torture in a presumptively open proceeding.

Meanwhile, we're left marveling at the trove of documents the British government apparently possesses relating to the cases of Mohamed and the five other U.K.-based former Guantánamo detainees with whom he brought this lawsuit. The 260,000 document figure may be a wild overestimation-the British government's argument was partly that if the established procedures are followed, it could take three years just to review the documents to decide which it will seek to withhold on national security grounds-but it is very clear from this skirmish that there are mountains of documents left to uncover about the treatment of U.S. detainees...including an astonishing number that are in the hands of foreign governments.

More Torture Schemes

It's becoming clearer by the week that the scheme described in Chapter 4 was not unique.

Last month a federal judge granted the habeas corpus petition of Uthman Abdul Rahim Mohammed Uthman, a young Yemeni detainee who was arrested in December 2001 and transferred to Guantánamo in January 2002. The U.S. alleged that Uthman, who was 20 at the time he was captured, was one of Osama bin Laden's bodyguards. That allegation rested on the statements of two other Guantánamo detainees, Sharqwi Abdu Ali Al-Hajj and Sanad Yislam Ali Al Kazimi: Hajj told interrogators he'd met Uthman at a meeting bin Laden attended in Afghanistan shortly after 9/11, and Kazimi identified a photograph of Uthman for his interrogators and said “he heard” that Uthman had become a bodyguard for bin Laden.

As with Binyam Mohamed, it turns out these statements were gathered at Bagram air base after the two men had been tortured, first in foreign dungeons and then in the CIA's “Dark Prison.”

And as in the case of Farhi Saeed Bin Mohammed—when Judge Gladys Kessler ruled that information Binyam Mohamed provided that incriminated Bin Mohammed was inadmissible because of his treatment in Pakistan, Morocco, and the Dark Prison—Judge Henry Kennedy, Jr. ruled last month in Uthman's case that

The Court will not rely on the statements of Hajj or Kazimi because there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.

As Judge Kennedy wrote:

Uthman has submitted to the Court a declaration of Kristin B. Wilhelm, an attorney who represents Hajj, summarizing Hajj's description to her of his treatment while in custody. The declaration states that while held in Jordan , Hajj “was regularly beaten and threatened with electrocution and molestation,” and he eventually “manufactured facts” and confessed to his interrogators' allegations “in order to make the torture stop.” After transfer to a secret CIA-run prison in Kabul, Afghanistan, Hajj was reportedly “kept in complete darkness and was subject to continuous loud music.”

Uthman also submitted a declaration of Martha Rayner, a Professor at Fordham University Law School who represents Kazimi, regarding Kazimi's description of his treatment in detention. Rayner reports that while Kazimi was held in the United Arab Emirates, his interrogators beat him; held him naked and shackled in a dark, cold cell; dropped him into cold water while his hands and legs were bound; and sexually abused him. Kazimi told Rayner that eventually “[h]e made up his mind to say ‘Yes' to anything the interrogators said to avoid further torture.” According to Rayner's declaration, Kazimi was relocated to a prison run by the CIA where he was always in darkness and where he was hooded, given injections, beaten, hit with electric cables, suspended from above, made to be naked, and subjected to continuous loud music. Kazimi reported trying to kill himself on three occasions. He told Rayner that he realized “he could mitigate the torture by telling the interrogators what they wanted to hear.” Next, Kazimi was moved to a U.S. detention facility in Bagram , Afghanistan , where, he told Rayner, he was isolated, shackled, “psychologically tortured and traumatized by guards' desecration of the Koran” and interrogated “day and night, and very frequently.” Kazimi told Rayner he “tried very hard” to tell the interrogators at Bagram the same information he had told his previous interrogators “so they would not hurt him.”

Once again, the position of the U.S. government—this time advanced by the Obama administration—was that because the Bagram “clean team” interrogations did not involve torture, statements the men made at Bagram should be admissible. Once again, a federal judge rejected this position, finding that the treatment the men had been subjected to in Jordan and another country undermined the reliability of their statements in Bagram.

I've spent the last few months trying to absorb the full implications of the “Ponzi scheme” we covered in Chapter 4. Now, with the Uthman habeas ruling, we're left to consider what it means that this chapter was not an isolated horror, but rather one episode in a much larger story in which scores of characters—U.S. interrogators, rendition crews, U.S. and foreign government officials, foreign jailers and torturers, CIA jailers and torturers, FBI “clean teams,” U.S. military jailers at Bagram and Guantánamo, just for starters—played specific, well-defined roles again and again over the course of several years. We're faced with the scope and utter deliberateness of the scheme.
 

Old Claims, New “Understandings”

Early this month we learned that even the U.S. government has abandoned its claim that Abu Zubaydah was a top al Qaeda conspirator. In a recently declassified document filed in Abu Zubaydah's habeas corpus proceedings, the U.S. now says that “individual Government agents have disagreed with past Government assessments and analyses” and that its “understanding of [Abu Zubaydah's] activities has evolved since his capture.”

The August 1, 2002 memo authorizing his torture described Abu Zubaydah as “one of the highest ranking members of the al Qaeda terrorist organization” who “has been involved in every major terrorist operation carried out by al Qaeda.”

Now, in this document submitted to the court last October and publicly released last month—a document, ironically, that argues against releasing materials that Abu Zubaydah's lawyers are seeking to challenge the Bush administration's characterizations of their client—the Justice Department concedes that “[e]vidence indicating that Petitioner is not a member of al-Qaida” is “not inconsistent” with its new position. Moreover, the government no longer claims that Abu Zubaydah “had any direct role in or advance knowledge of the terrorist attacks of September 11, 2001” or in fact “had knowledge of any specific impending terrorist operations other than his own thwarted plans” at the time he was captured.

Compare the U.S. government's new “understanding” with this document, titled “The CIA Interrogation of Abu Zubaydah, March 2001 (sic) – Jan. 2003,” part of the new batch of documents released last week in contempt proceedings stemming from the destruction of the Abu Zubaydah and al Nashiri interrogation tapes.

We learn some news things about Abu Zubaydah's interrogation from this document. It confirms, for example, that at least one of the “Enhanced Interrogation Techniques” was used—and misused—within days of Abu Zubaydah's capture, presumably during the tug-of-war we described in Chapter 2 between FBI and CIA interrogation teams:

After consulting with NSC and DOJ, CTC/[redacted] originally approved 24-48 hours of sleep deprivation. In April 2002, CTC[redacted] learned that due to a misunderstanding that time frame had been exceeded.

 However, CTC[redacted] advised that since the process did not have adverse medical effects or result in hallucination (thereby disrupting profoundly Abu Zubaydah's senses or personality) it was within legal parameters.”

We also learn that during the later use of the full range of EITs, “Where a time period was allowed for a particular technique, a timekeeper was used to ensure that the techniques was only employed within the time frames authorized.” And we are (not exactly) reassured that

It is not and has never been the Agency's intent to permit Abu Zubaydah to die in the course of interrogation and appropriately trained medical personnel have been on-site in the event an emergency medical situation arises.

Drafted as the CIA's Inspector General was reviewing the CIA's Detention, Rendition, and Interrogation program in early 2003, “The Interrogation of Abu Zubaydah” repeatedly hammers three main points: that Abu Zubaydah was a top al Qaeda lieutenant who had knowledge of impending attacks, that his interrogation thwarted those attacks, and that the interrogation was not torture. Transparently self-justifying, it's painful reading in light of everything we've seen in the first four chapters of the Report.

It's hard, for example, to finish Chapter 4 and then to come upon, and consider all the implications of, this:

Abu Zubaydah identified Jose Padilla and Binyam Muhammad as al-Qa'ida operatives who had plans to detonate a uranium-topped “dirty bomb” in either Washington , DC , or New York City . Both have been captured.

The Conclusion of Chapter 4, “A Ponzi Scheme of Torture”

Today we post the conclusion of “A Ponzi Scheme of Torture,” a chapter which pieces together the interconnected, serial tortures of Abu Zubaydah, Binyam Mohamed, and Jose Padilla.

In the first part of the chapter, “The Scheme,” we saw how the interrogations of these three men formed the entire basis of an alleged “dirty bomb” plot the Bush administration knew from the start was a far-fetched fiction—and how the administration resorted to torture in these interrogations not to thwart an impending attack but to produce false confessions and testimonies it would try to use against these three and others. We saw how, as always, the principle fruits of torture are bad information and more torture.

In the first installment of the Part 2, “The Story Unravels,” we followed Jose Padilla's case as it made its way through the courts.

Now, in the final installment of this shameful story, we take a similar look at the proceedings against Binyam Mohamed, who today is a free man in England, and end where we began this first full section of the Torture Report, with Abu Zubaydah, whose White House-orchestrated torture we chronicled in Chapter 2 and who remains in complete legal limbo in Guantánamo.

There have been several developments in the last two weeks relating to the ground we've covered in the report's first four chapters, and I'll cover them here in the Diary in the days ahead.

For now, though, I'd just like to encourage you to read this new section, and Chapter 4 in its entirety. It's a story everyone should know.

On Guantánamo Lawyers

Keep America Safe's attack ad labeling a group of Justice Department lawyers who formerly defended Guantánamo detainees “the al Qaeda 7” got people talking about such fundamentals of justice as the right to have an advocate in legal proceedings, which is certainly a good thing. (I recommend Torture Report contributor and former Guantanamo detainee defense counsel David Frakt's excellent satirical and serious pieces on this subject.) But it's really only the beginning of a conversation that needs to go much deeper than this one, with its lingering insinuation that Guantánamo housed “the worst of the worst” and that lawyers who represented Gitmo detainees and challenged the conditions and terms of their confinement were playing a loathsome but essential role in our venerated system of justice.

The real question, of course, is to what extent the limited legal proceedings afforded Guantánamo detainees can even be called a justice system.

As I've been writing the final pages of Chapter 4, which include the U.S. government's attempts to prosecute Binyam Mohamed before two generations of Military Commissions, I've been deeply and repeatedly moved by the words of the lawyers detailed to military commission cases as they sought to answer this question, not only for their clients, but for themselves and for their nation. Far from ‘mob lawyers' bent on springing their clients at all costs, they exhibit what I think we all like to consider essential qualities of the American character: a sense of fairness, honesty, and personal and national integrity.

There is, for example, the July 11, 2006 Congressional testimony of Lieutenant Commander Charles Swift, who represented Yemeni detaineed Salim Ahmed Hamdan, following the Supreme Court's ruling that Hamdan had a right to pursue a habeas corpus petition in federal court. At the hearing, Swift questioned “whether military commissions can ever actually deliver the full and fair trials promised by the President's Order. Based on the past five years the inescapable conclusion is that the commission consistently failed to meet the President's mandate for full and fair trials.”

Swift cited several glaring shortcomings in the military trial process: all of the personnel involved, including the officers serving as jurors, were handpicked by the Appointing Authority, the same official who approved the charges; the defense had a limited right to call witnesses; defense lawyers, even if they were granted access to secret government documents, couldn't share them with their clients. Most outrageously, Swift told the Senate, “the military commission system had no rule preventing the admissibility of statements obtained by coercion,” and “had inadequate rules to ensure that the Defense would receive exculpatory evidence in the government's possession”—including evidence that the information prosecutors were advancing was the fruit of torture.

Keep America Safe's ad is meant to cast doubt on the motivations of those who, like Swift, defended Guantánamo detainees before the Military Commissions and in habeas corpus proceedings. But as Swift made clear to Congress, the view he was expressing “isn't simply the view of a defense counsel who litigated in the commission system. It is also the view of some of the commission prosecutors.” Citing two tribunal prosecutors who had resigned in protest, Swift testified,

One of those prosecutors, Air Force Captain John Carr, wrote that in his experience, the commission was “a half hearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged. Another prosecutor, Air Force Major Robert Preston, lamented that “writing a motion saying that the process will be full and fair when you don't really believe it is kind of hard—particularly when you want to call yourself an officer and a lawyer.”

Swift noted that Carr was especially concerned about the government's routine practice of withholding potentially exculpatory evidence from the defense.

In the military commission system, the Prosecution had no obligation to give the Defense exculpatory evidence in the possession of other government agencies. This was significant because, according to one former military commission prosecutor, government agencies intended to deliberately exploit this gap in discovery obligations to keep the defense from obtaining exculpatory evidence. Commission prosecutor Captain John Carr wrote to the commission system's Chief Prosecutor, “In our meeting with [a government agency], they told us that the exculpatory information, if it existed, would be in the 10% that we will not get with our agreed upon searches. I again brought up the problem that this presents to us in the car on the way back from the meeting, and you told me that the rules were written in such a way as to not require that we conduct such thorough searches, and that we weren't going to worry about it.”

Some of the most compelling words on this subject come from another former Guantánamo prosecutor, Lt. Col. Darrel Vandeveld, the military prosecutor originally assigned to Binyam Mohamed's case. Vandeveld also prosecuted the case of Mohammed Jawad, an Afghan youth facing attempted murder charges for allegedly throwing a grenade into a jeep in a passing military convoy in Afghanistan, until he resigned in protest of the unfairness of the commission process on September 22, 2008. I'll quote from both his resignation statement to the Military Commission and the declaration he later filed in Jawad's successful habeas corpus petition in the conclusion to Chapter 4. But it is worth reading both documents in their entirety, for their clear, specific descriptions of both detainee abuse and misconduct in the military trials system. And it is absolutely worth keeping this conclusion to his habeas declaration in whenever we hear allegations about the motivations of Guantánamo lawyers:

Ultimately, I decided that I could no longer ethically prosecute Mr. Jawad or, in good conscience, serve as a prosecutor at OMC-P. I have taken an oath to support and defend the Constitution of the United States, and I remain confident that I have done so, spending over four of the past seven years away from my family, my home, my civilian occupation—all without any expectation of or desire for any reward greater than the knowledge that I have remained true to my word and have done my level best to rise to our Nation's defense in its time of need. I did not “quit” the Commissions or resign; instead, I personally petitioned the Army's Judge Advocate General to allow me to serve the remaining six months of my two year voluntary obligation in Afghanistan or Iraq . In the exercise of his wisdom and discretion, he permitted me to be released from active duty. However, had I been returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and another one of my very best friends in the world had been terribly wounded, I have not doubt at all—none—that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecutor. Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand. I respectfully ask this Court to find that Mr. Jawad's continued detention is unsupported by an credible evidence, any provision of the Detainee Treatment Act of 2005, the MCA, international law or our own Constitution. Mr. Jawad should be released to resume his life in a civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.

The conclusion of Chapter 4's “Ponzi Scheme of Torture” will be posted this week.

Further Lessons in Transparency and Accountability

The opinion the U.K. Court of Appeals handed down last month ordering the release of the seven paragraphs corroborating Binyam Mohamed's account of his treatment in Pakistan contained this paragraph:

Fourthly, the Foreign Secretary must have prepared the certificates on the basis of advice from members of the SIS and the SyS, whose involvement in the mistreatment of Mr. Mohamed has been the subject of findings by the Divisional Court . Having said that, witness B is currently under investigation by the police; and it is impossible, at any rate at this stage, to form a clear or full view as to precisely what his involvement was in the mistreatment of Mr. Mohamed.

The paragraph was part of Lord David Neuberger's concurring opinion, and when the court's decision was handed down on February 9, 2010, Lord Neuberger made clear it was a draft paragraph and that it was subject to further revision.

This past Friday, the Appeals Court issued an extraordinary document that not only contains Lord Neuberger's final version of the paragraph, but also chronicles the drama surrounding the drafting of what is known as paragraph 168 of the Court's opinion.

Here is the paragraph Lord Neuberger originally drafted:

Fourthly, it is also germane that the SyS were making it clear in March 2005, through a report from the Intelligence and Security Committee that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment). Yet that does not seem to be true: as the evidence in this case showed, at least some SyS officials appear to have a dubious record when it comes to human rights and coercive techniques, and indeed when it comes to frankness about the UK's involvement with the mistreatment of Mr Mohamed by US officials. I have in mind in particular witness B, but it appears likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by SyS personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning such mistreatment can be relied on, especially when the issue is whether contemporaneous communications to the SyS about such mistreatment should be revealed publicly. Not only is there an obvious reason for distrusting any UK Government assurance, based on SyS advice and information, because of previous “form”, but the Foreign Office and the SyS have an interest in the suppression of such information.

The original passage contained what would have been the Court opinion's most direct criticism of the conduct of the U.K. in connection with Mohamed's treatment while in U.S. custody: intelligence officials have a “dubious record” when it comes to human rights abuses and “to frankness about the UK's involvement with the mistreatment of Mr. Mohamed by U.S. officials”; their misstatements to the Foreign Secretary about what they knew raise questions about whether any statements they made about the case are credible; and in addition to this “obvious reason for distrusting any U.K. Government assurance” that relies on intelligence service information, both the Foreign Office and the intelligence services “have an interest in the suppression” of information about the extent to which the U.K. knew about, and was complicit in, his abuse.

Following established practice, the Judges had circulated their draft opinions to the parties in the lawsuit, and the Foreign Office had objected particularly strongly to this paragraph. Judge Neuberger published the short “draft” version of paragraph 126 as a placeholder while he considered the Foreign Office's objections. Last week, he largely restored the original paragraph, having clarified that he was speaking specifically about the U.K. 's involvement in Binyam Mohamed's case and not about abusive U.S. interrogations in general and removing the reference to the Foreign Office's interest in suppressing information. Here's the final version of the paragraph:

Fourthly, it is also germane that the Security Services had made it clear in March 2005, through a report from the Intelligence and Security Committee, that “they operated a culture that respected human rights and that coercive interrogation techniques were alien to the Services' general ethics, methodology and training” (paragraph 9 of the first judgment), indeed they “denied that [they] knew of any ill-treatment of detainees interviewed by them whilst detained by or on behalf of the [US] Government” (paragraph 44(ii) of the fourth judgment). Yet, in this case, that does not seem to have been true: as the evidence showed, some Security Services officials appear to have a dubious record relating to actual involvement, and frankness about any such involvement, with the mistreatment of Mr Mohamed when he was held at the behest of US officials. I have in mind in particular witness B, but the evidence in this case suggests that it is likely that there were others. The good faith of the Foreign Secretary is not in question, but he prepared the certificates partly, possibly largely, on the basis of information and advice provided by Security Services personnel. Regrettably, but inevitably, this must raise the question whether any statement in the certificates on an issue concerning the mistreatment of Mr Mohamed can be relied on, especially when the issue is whether contemporaneous communications to the Security Services about such mistreatment should be revealed publicly. Not only is there some reason for distrusting such a statement, given that it is based on Security Services' advice and information, because of previous, albeit general, assurances in 2005, but also the Security Services have an interest in the suppression of such information.

This seems, on one level, like arcane and dull court business. But there's something thrilling about this document. It has to do with the Court's insistence on doing its work to the maximum extent possible in the public eye. It has to do with one Judge's insistence on underscoring the most troublesome aspect of the Binyam Mohamed case for British citizens—that their government's intelligence services were complicit in his torture and then lied about their involvement. And it has to do with the fundamental belief that underlies this little drama about the drafting of one paragraph: that words matter, and never more than in the quest for truth and accountability.

Transnational Justice and the Binyam Mohamed Case

In terms of accountability, a lot of the action in the Binyam Mohamed case has been in the U.K., but as we've been following in Chapter 4 and here in the Diary, it is the recent round of back-and-forth decisions between a U.K. and U.S. court that has really served to establish the truth of Mohamed's account of torture in Pakistan, Morocco, and the CIA's secret Dark Prison.

That has me thinking about what is being called “transnational justice,” and so I asked Steven Watt, Senior Staff Attorney at the ACLU's Human Rights Program, to give me some background on this important tool and how it is being used in Binyam Mohamed's case. I thought I'd just share our conversation.

 

LS: Explain “transnational justice” to me—What is the idea, where does it come from, what are some significant examples?

SW: Transnational Justice is a very fluid term, but it basically involves the flow of ideas and judgments from court to court across borders, and using this flow to advocate for justice. A really good example of this would be Binyam Mohamed's case. We've got litigation here in the United States on behalf of Binyam Mohamed, there's habeas proceedings there's also a damages proceeding against Jeppesen Dataplan, and over in the UK there's mirror litigation involving access to information that's in the hands of the United Kingdom concerning his detention by US authorities in Pakistan in 2002, and there's also litigation involving Jeppesen Dataplan's UK subsidiary and its involvement in his rendition and torture in Pakistan and Morocco from 2002 to 2004.

LS: I didn't realize there was a separate Jeppesen action. Which one was filed first?

SW: Ours was filed first, and then lawyers over there had the idea, when it came to light that there was a possibility that Jeppesen's UK subsidiary had been involved in his rendition, that they would file an action that mirrored our proceedings in the United States . So I've been working very closely with them, making sure they have all the information we have, making sure their claims don't somehow conflict with the claims we've made here. It's an interchange of ideas and judgments and standards—that's what transnational justice is all about.

LS: In this case we've seen that interchange of judgments pretty vividly, the way the UK court's earlier decisions affected Judge Kessler's decision to grant the habeas corpus petition of a Guantánamo detainee because information Binyam Mohamed had supposedly provided about the detainee was tainted by Binyam's torture—and the way Judge Kessler's decision then became a major part of the U.K. court's decision to release the seven paragraphs, right?

SW: Absolutely, because what the U.K. Court of Appeal found in its most recent decision was that, of course we have to unredact those seven paragraphs in the lower court's judgment, because a court in the United States has already made findings which mirror what was in those seven paragraphs—so the claims by the U.K. government in his case before the court of appeal, that releasing the paragraphs would damage the intelligence-sharing relationship between the countries, were improbable. Since the United States had now already openly discussed exactly the same issues in Judge Kessler's opinion, why should the court prohibit their publication in the United Kingdom ?

LS: Can you talk a little bit about the using this tool of transnational justice specifically to address torture, to secure accountability for torture? It seems to me there's two parts of that, there's telling the story, establishing the truth of what happened, and there's making reparations to the person who was subjected to torture.

SW: I don't think it's really making reparations—or rather, I think it's looking at reparations in a very broad sense of the word. What was important to Binyam in the U.K. case and in the U.S. proceedings is really the vindication of his story, so transnational justice really becomes the process by which his story is verified in an official proceeding. This kind of vindication is crucially important to torture survivors in their recovery process; I've personally witnessed it time and again in many cases where I've been involved with victims of post-9/11 torture and forced disappearance policies. What they want in these court proceedings is some way of even attempting to hold those responsible accountable.

LS: Who are some of the others you have worked with?

SW: That would be starting back when I worked at the Center for Constitutional Rights representing Maher Arar, for example. His primary reason for filing proceedings which we knew were going to be incredibly difficult in the United States was some vindication of his story, a truth-telling process. That's what the litigation was about for him. Similarly, Khalid el-Masri, who, you know, had a very different personal background, but was of the same view as Maher Arar: he wanted a process by which the truth could come out and that he could somehow someday get an apology, and litigation was seen as part of that process. And then the five individuals in the Jeppesen case, all of them—they're not about seeking huge money damages which they'll never see at the end of the day, most likely, but it's a process of holding those responsible for their treatment to account.

LS: So how far is Binyam Mohamed toward that goal now? I mean, you now have a court in the U.S. and a court in the U.K. who essentially say that his account of his experiences, at least in Pakistan —

SW: Pakistan , and in Morocco . In the habeas proceedings, Judge Kessler basically found that his account seemed to be truthful, and noted that the United States authorities, when presented with it, did not dispute it, so she took his account as a given. And similarly in the U.K. now, those judges have found that their examination of 42 documents—because that's what that case was about, they analyzed 42 documents which gave an accounting of U.S. and U.K. complicity in Mohamed's rendition and detention, and they distilled that down to these seven paragraphs—and these judges in the United Kingdom also found that his version of the facts, his torture, his forced disappearance, were truthful. And that's very, very important to Binyam in his recovery process as a torture survivor.

LS: But it's short of an apology.

SW: We're nowhere near an apology, either in the U.K. or the U.S. yet, but at least in the U.K., I think it's important to note that once the court came down with its ruling and said that those seven paragraphs should be published, the U.K. government complied with that order and didn't drag this proceeding out, didn't go for example up to what is now called the Supreme Court in the United Kingdom, previously the House of Lords. They didn't actually fight the case up to the highest court as they could have done; they came clean and said, OK, let's publish them, and those seven paragraphs are published on the official U.K. government website.

LS: Do you think the U.K. 's actions will now change or affect the Jeppesen suit in the U.S? Will it make it more difficult for our government to pursue a sort of ‘state secrets' approach?

SW: I would think so. I mean one would think the judges would look at government's assertions of damage to national security in Jeppesen case, particularly in relation to Binyam Mohamed's claims, with skepticism. Because if what the government is essentially trying to cover up in the Jeppesen litigation in the U.S. is the same as what it now publicly acknowledged in the U.K.—and I can't see that it would be any different—it just makes their assertions increasingly improbable, and I think'll be viewed, as I say, with skepticism.

LS: It's interesting to think of this kind of pursuit of justice across borders as a kind of mirror image of the “war on terror's” notion of a borderless international conflict, and as a powerful tool for responding to the abuses of that approach. Do you think this is the way it's going to play out in more and more cases, and places?

SW: I think it's the way to pursue justice in a paradigm where you have the United States , both the prior administration and now this administration, trying to act outside the law by making assertions that these incidents arose outside of the United States , so therefore you can't come into a United States courtroom to assert your rights. As advocates we now need to look outside the United States . In the same way that the U.S. administrations are looking outside the United States to justify their positions, we should be looking outside the U.S. to hold them to account.

New Information on “Mock Burials”

Marcy Wheeler has found confirmation in the OPR Report that the CIA originally sought to include “mock burials” in its arsenal of approved Enhanced Interrogation Techniques.

As Mitchell progressed up the “force continuum,” however, the CIA wanted more than oral approval. In his account to the ICRC, Abu Zubaydah described a month-long lull in his questioning “about two and a half or three months” after he had arrived at the black site. That would have been late June or early July, 2002. So far, he had been subjected to prolonged shackling, dietary manipulation, incessant loud noise, and had spent weeks naked in a bare, frigid cell, but at that point had only faced one of the 11 proposed EITs, sleep deprivation. Before Mitchell could move further into physical abuse and waterboarding, CIA attorneys ordered a pause to give Yoo and the OLC time to prepare formal legal opinions declaring that methods that had been perfected by regimes that scorned the Geneva Conventions do not constitute torture. According to the CIA's Inspector General,

Eleven EITs were proposed for adoption in the CTC Interrogation Program. As proposed, use of EITs would be subject to a competent evaluation of the medical and psychological state of the detainee. The Agency eliminated one proposed technique – [REDACTED] – after learning from DoJ that this could delay the legal review. 25

That eleventh technique was evidently mock execution, a standard component of SERE training that is explicitly prohibited under the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment and under U.S. law codifying the Convention. The law specifically lists “the threat of imminent death” as an act that causes severe mental pain and suffering and is therefore criminal under the statute. But the phrase “mock execution” matches the redaction in the OIG's report exactly, and there are clear indications that CIA interrogators initially included it in their repertoire. At the Thai black site, Ali Soufan had erupted when he discovered Mitchell had constructed a coffin-shaped box for Zubaydah, calling Pasquale D'Amuro, the FBI assistant director for counterterrorism, and saying “I swear to God, I'm going to arrest these guys!” Newsweek reported that Mitchell told Soufan the box was for a “mock burial.” 26

PDF page 42 of the OPR Report ( searchable copy here) includes a list of the torture techniques that Mitchell and Jessen recommended be used with Abu Zubaydah. Whereas the Bybee Two Techniques memo approves ten techniques, Mitchell and Jessen recommended twelve. In other words, Mitchell and Jessen asked for two techniques to be approved that did not get specific approval.

One of these (technique 10) is diapering. We know they used diapers anyway as it was a critical element of their sleep deprivation and stress position techniques.

Technique 12 remains redacted in this report. But as I pointed out last wee, PDF page 178 of the First Draft includes an unredacted reference to the technique.

Goldsmith viewed the Yoo Memo itself as a “blank check” that could be used to justify additional EITs without further DOJ review. Although Yoo told us that he had concluded that the mock burial technique would violate the torture statute , he nevertheless told the client, according to Fredman and Rizzo, that he would “need more time” if they wanted it approved. [my emphasis]

The twelfth technique–which Mitchell and Jessen wanted approved but which Yoo excluded because of the rush to approve waterboarding–is mock burial.

There must have been significant discussion about the decision to exclude mock burial from the Bybee Two memo, because the reference to its exclusion in the report itself (PDF page 60 in the Final Report) includes a page and a half of redactions following the discussion of leaving it out.

As Marcy points out, and as we saw in Chapter 3, the failure to secure DOJ sanction for mock burials or mock executions did not stop CIA agents from trying the technique in the interrogation of Abd al-Rahim al-Nashiri at the end of 2002:

For two weeks, the “debriefer” who had been flown in from CIA headquarters oversaw this unscripted interrogation. Finally, the debriefer himself, who the Inspector General notes “was not a trained interrogator and was not authorized to use EITs,” took over:

Sometime between 28 December 2002 and 1 January 2003, the debriefer used a semi-automatic handgun as a prop to frighten Al-Nashiri into disclosing information. After discussing this plan with [redacted] the debriefer entered the cell where Al-Nashiri sat shackled and racked the handgun once or twice close to Al-Nashiri's head. 13 On what was probably the same day, the debriefer used a power drill to frighten Al-Nashiri. With [redacted] consent, the debriefer entered the detainee's cell and revved the drill while the detainee stood naked and hooded. The debriefer did not touch Al-Nashiri with the power drill.” 14

…The CIA had dropped “mock executions” from its proposed list of Enhanced Interrogation Techniques precisely because even the authors of the August 1, 2002 legal opinions couldn't argue that feigning an intention to kill a prisoner is ever permissible. 16 Now the CIA was facing a situation where agents involved in its Rendition, Detention and Interrogation program had clearly committed a premeditated felony under US law.

A New Installment, and an Outrageous Lie

Today we post the first part of “The Story Unravels,” the epilogue to Chapter 4's “Ponzi Scheme of Torture.” This first section follows Jose Padilla's case as it made its way through the courts; the final part, which we will publish next week, takes a similar look at the Binyam Mohamed and Abu Zubaydah cases.

One of the more depressing of the many extremely depressing aspects of writing this chapter has been to see how the “dirty bomb plot” at the center of this “Ponzi scheme,” a plot that had no life outside the torture chambers, persists in arguments supporting or justifying torture.

I came across an especially pernicious example of this just about an hour ago, when I was reading through one of the documents released in connection with Justice Department's Office of Professional Responsibility's (OPR) Report on whether the authors of the torture memos violated standards of professional ethics. The document is memo-signer and now Federal Judge Jay S. Bybee's first Response to the OPR's draft report, which Bybee's attorneys forwarded to the OPR on May 4, 2009.

Among the flaws the OPR highlighted in the August 1, 2002 John Yoo-authored “Bybee memo” (PDF) was the suggestion that a CIA interrogator accused of torture could mount a “necessity defense.” “A thorough, objective, and candid discussion of the necessity defense in the context of the CIA interrogation program would have included an element-by-element analysis of how the defense would be applied to a government interrogator accused of violating the torture statute,” the OPR noted on page 211, adding in a footnote on the following page:

The Bybee Memo, in Part IV (International Decisions) briefly alluded to the “ticking time bomb” scenario....As noted above, in their OPR interviews, Bybee and Yoo both referred to the ticking time bomb hypothetical as support for their analysis of the necessity defense.

The ticking time bomb scenario is frequently advanced as moral or philosophical justification for interrogation by torture. However, other scholars have argued that the scenario is based on unrealistic assumptions and has little, if any, relevance to intelligence gathering in the real world. Reliance upon the scenario has been criticized because it assumes, among other things: (1) that a specific plot to attack exists; (2) that it will happen within hours or minutes; (3) that it will kill many people; (4) that the person in custody is known with absolute certainty to be a perpetrator of the attack; (5) that he has information that will prevent the attack; (6) that torture will produce immediate, truthful information that will prevent the attack; (7) that no other means will produce the information in time; and (8) that no other action could be taken to avoid the harm.

To our knowledge, none of the information presented to OLC about Abu Zubaydah, KSM, Al-Nashiri, or the other detainees subjected to EITs approached the level of imminence and certainty associated with the “ticking time bomb” scenario. Although the OLC attorneys had good reasons to believe that the detainees possessed valuable intelligence about terrorist operations in general, there is no indication that they had any basis to believe the CIA had specific information about terrorist operations that were underway, or that posed immediate threats.

Moreover, any reliance upon the “ticking time bomb” scenario to satisfy the imminence prong of the necessity defense would be unwarranted in this instance, as the EITs under consideration were not expected or intended to produce immediate results. Rather, the goal of the CIA interrogation program was to condition the detainee gradually in order to break down his resistance to interrogation. (Citations omitted)

It is in responding to this criticism that Bybee trots out the “dirty bomb plot.”

OPR states that the Memo should have discussed a real world situation in which a defendant could prove that he reasonably anticipated that torture would produce information directly responsible for preventing an immediate impending attack. (75)

Indeed, the OLC attorneys working on the 2002 Memo had been briefed on the apprehension of Jose Padilla on May 8, 2002. Padilla was believed to have built and planted a dirty bomb--a radiological weapon which combines radioactive material with conventional explosives--in New York City. It is easy for OPR, seven years removed from the horror of 9/11 to scoff at the notion of a ticking time bomb scenario, but the context in which these memos were written simply cannot be forgotten. (75, fn 46, emphasis added)

It is of course impossible that anyone in the administration believed Padilla had built and planted a dirty bomb in New York : he was arrested at Chicago 's O'Hare airport on arrival from Zurich after spending four years overseas. As we saw in Chapter 4, Ashcroft's first announcement of the arrest did claim that “We have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,' in the United States,” but by the next day administration officials were even running away from that, sheepishly acknowledging, as Deputy Secretary of Defense Paul Wolfowitz put it, “I don't think there was actually a plot beyond some fairly loose talk and his coming in here obviously to plan further deeds.”

The OPR is right: using the ticking time bomb scenario to justify torture is factually suspect and legally dubious. That Bybee tries to use the scenario now to justify the flawed conclusions of the memos he signed is depressing, if not surprising. But for him to claim that it was the Padilla case that presented such a scenario is a simple, outrageous lie.

What Was, and Is, at Stake

The opinion of the UK Court of Appeal ordering the British government to release the seven previously secret paragraphs is particularly vivid in laying out what has been at stake in Binyam Mohamed's lawsuit in the UK.

When Mohamed's lawyers first filed suit in the UK in May 2008, the information contained in the 42 CIA documents those seven paragraphs summarized was potentially a matter of life and death for Mohamed, who faced the possibility of trial before a military commission in Guantánamo for plotting with Jose Padilla to blow up apartment buildings and to set off a “dirty bomb” in the US.

As Baron Igor Judge, the Lord Chief Justice of England and Wales , put it in his lead opinion (PDF),

Although Mr. Mohamed is now discharged from the danger of proceedings in the USA , whether capital, or otherwise, there was a time when he was exposed to a genuine and serious risk that if convicted he would be executed. It was to address the risk of his conviction for a capital offence that the present proceedings were launched in this country against the Foreign Secretary. The redacted paragraphs formed part of the reasons of the court in a judgment which vindicated Mr Mohamed's assertion that UK authorities had been involved in and facilitated the ill-treatment and torture to which he was subjected while under the control of USA authorities.

It was during that ill-treatment and torture that Mohamed had confessed to the various plots for which he stood accused; when it became clear that the documents establishing the abuse would make their way into the military commission, the US dropped the “dirty bomb” charge, and a few days later the remaining charges against Binyam Mohamed were dismissed. Three months later, Mohamed was living as a free man again in London. So, in a sense, as the Lord Chief Justice noted,

Mr. Mohamed has undoubtedly achieved the objective of the litigation he brought against the Foreign Secretary. He no longer needs the material which was in the possession of the UK authorities to achieve his acquittal. It can indeed be safely assumed that proceedings based on the confessions while he was held incommunicado at the behest of the USA authorities will never again be contemplated. It therefore follows that later events made disclosure of the redacted paragraphs “unnecessary” and “gratuitous” in the limited sense that Mr. Mohamed is no longer at risk of prosecution on a capital charge. Putting it shortly, he has won.

“That however is not the whole story,” the Lord Chief Justice continued (PDF). There was in fact more at stake. First, there is the question of judicial transparency. The seven paragraphs redacted from the UK court's judgments had summarized the treatment described in the 42 documents and concluded that the abuse would have violated British commitments under international law; the public has in interest in seeing how the court reached its conclusion:

Justice must be done between the parties. The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law. For that reason, every judge sitting in judgment is on trial.

It's more than judicial accountability, though. In a case like this one, when the conduct of the executive branch is at issue, fundamental democratic principles are at stake:

There is however a distinct aspect of the principle which goes beyond proper scrutiny of the processes of the courts and the judiciary. The principle has a wider resonance, which reflects the distinctive contribution made by the open administration of justice to what President Roosevelt described in 1941 as the “...first freedom, freedom of speech and expression”. In litigation, particularly litigation between the executive and any of its manifestations and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself. Where the court is satisfied that the executive has misconducted itself, or acted so as to facilitate misconduct by others, all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.

Finally, and no less importantly, Mohamed himself continues to have a profound stake in the case. Not being tried and executed based on a confession elicited through torture is success of a sort, but Mohamed is entitled to more. Rejecting the “attractive argument that Mr. Mohamed has nothing further to gain from publication of the redacted paragraphs,” the Lord Chief Justice insisted:

The successful party is no less entitled to know the reasons for the court's judgment than the unsuccessful parties. I have already noted the strange consequence that if the redaction is maintained, Mr. Mohamed will know less about the reasons for the court's decision than the intelligence services which, even if innocently, were involved in or facilitated the wrongdoing of which he was the victim. There is a clear interest in Mr. Mohamed knowing, and the community at large also knowing, not only that his allegations were vindicated, but also the full reasons (even if not the entirety of the evidence) which led the court to its conclusion. The redacted paragraphs are integral to the reasoning that Mr. Mohamed's entitlement to relief fell within the ambit of executive involvement in wrongdoing.

This equal access to knowledge is an important step in the process of making the victim of torture whole—a process the Lord Chief Justice notes that Mohamed is pursuing through a separate lawsuit in the UK. “Mr. Mohamed is now taking civil proceedings for damages against the UK government, in effect for their tortuous involvement in the wrongdoing of the USA authorities,” he writes, warning that if the Foreign Secretary “will not make the desired concession” to release the information Mohamed needs in that case, “the court will make whatever decision is appropriate in those proceedings.”

Seven Secret Paragraphs Released

More on accountability…in the UK:

Chapter 4 included descriptions, in Binyam Mohamed's own words, of his interrogation shortly after his arrest in Pakistan in May 2002. In a cell in a Pakistani intelligence service interrogation center, where he was suspended by his wrists around the clock between interrogation sessions, a 4-person U.S. interrogation team informed him that “The law has been changed. There are no lawyers. You can cooperate with us—the easy way, or the hard way.” Employing ‘enhanced interrogation techniques' including sleep deprivation and stress positions, interrogators threatened to turn him over to foreign governments for more extreme torture; at one point, a Pakistani interrogator threatened his life with a loaded handgun.

We've known for some time that the British government had CIA documents that substantially corroborated Mohamed's account of his interrogation in Pakistan. Mohamed's attorneys sued the British government to turn over those documents so he could present them in his defense before a military commission in Guantánamo; that suit, which figures prominently in the forthcoming conclusion to Chapter 4, has accomplished as much as any single proceeding so far in advancing a public discussion of accountability for torture. As I noted in last Friday's diary entry, though, that discussion has centered on the extent to which British government and intelligence officials were complicit in U.S.-orchestrated tortured, and not on the primary responsibility of U.S. agents and officials.

In the past year, that lawsuit had come down to a struggle to win the release of seven paragraphs that the British government had demanded be redacted from one of the court's opinions. Those paragraphs were known to describe the CIA documents referring to Mohamed's interrogation in Pakistan before two British intelligence agents were allowed to interrogate him on May 17, 2002. British Foreign Secretary David Miliband fought the release of the paragraphs because the United States had explicitly threatened that publishing the information would harm the intelligence-sharing relationship between the two nations; harming that relationship, Miliband argued, would endanger Britain's national security.

Today a panel of three of Britian's most senior judges rejected that argument and ordered the government to release the text of those seven paragraphs. I'm reading their powerful opinion now, and in my next post I'll share some passages from their ruling on a case that the judges declared went to the heart of “democratic accountability and the rule of law itself.”

Reprieve, the British organization that led the legal fight in the U.K., has an outstanding summary of the UK case here.

And here are those seven paragraphs the U.S. and British governments fought so hard to keep us from seeing:

It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.

 v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

 vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and "disappearing" were played upon.

 vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews

 viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

 ix) We regret to have to conclude that the reports provide to the SyS [security services] made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

 x) The treatment reported, if had been administered on behalf of the United Kingdom , would clearly have been in breach of the undertakings given by the United Kingdom in 1972. Although it is not necessary for us to categorise the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities.

Binyam Mohamed and the Search for Accountability

One of the interesting aspects of Binyam Mohamed's case, which is at the center of the story of Chapter 4, is that it provides a measure of how poorly the U.S. is performing on the question of accountability.

Last week The New York Times published this Reuters piece in its “World Briefing”:

The United States is among dozens of countries that have kidnapped and held terrorism suspects in secret detention over the past nine years, violating their basic human rights, a United Nations report charged Tuesday. It said that Algeria , China , Egypt , India , Iran , Russia , Sudan and Zimbabwe were also detaining security suspects or opposition members in unknown places. “On a global scale, secret detention in connection with counterterrorist policies remains a serious problem,” investigators said in a yearlong study that will be presented to the Human Rights Council in Geneva in March.

It is one of the few mentions of the United Nations (UN) report in the American press, and it conspicuously understates the report's aims and conclusions. In fact, while the UN report puts secret detention in a global and historical framework, fully half of the space it devotes to recent violations of prohibitions on secret detention concerns the conduct of the United States since 9/11.

Among these violations is the rendition of detainees to proxy detention sites in third countries. Some snippets of the report's findings:

At least 15 prisoners—mostly seized in Karachi, Pakistan, or in the Pankisi Gorge in Georgia—claim to have been rendered by the CIA to the main headquarters of Jordan's General Intelligence Department (GID, or Da'irat al-Mukhabarat al-‘Amma) in Amman, Jordan, between September 2001 and 2004. (¶144)

At least seven men were rendered to Egypt by the CIA between September 2001 and February 2003, and another was rendered to Egypt from the Syrian Arab Republic , where he had been seized at the request of the Canadian authorities. (¶146)

At least nine detainees were rendered by the CIA to the Syrian Arab Republic between December 2001 and October 2002, and held in Far Falestin, run by the Syrian Military Intelligence or Shu'bat al-Mukhabarat al-Askariyya. (¶147)

And finally,

At least three detainees were rendered to Morocco by the CIA between May and July 2002, and held in Temara prison. (¶151)

One of these three is Binyam Mohamed, whose name appears again several pages later, in a section entitled “Complicity in the practice of secret detention.” As the report's authors explain, a country is complicit in secret detention when it either asks another country to secretly detain a person or takes advantage of a secret detention situation by sending questions to the State holding the detainee to use in their interrogation. Among the complicit countries, the report finds, is

The United Kingdom in the cases of several individuals, including Binyam Mohamed, Salahuddin Amin, Zeeshan Siddiqui, Rangzieb Ahmed and Rashid Rauf. In its submission for this study the United Kingdom Government referred to ongoing and concluded judicial assessment of the cases and stressed the work of the parliamentary Intelligence and Security Committee (ISC), as well as its policy of clear opposition to secret detention. (¶159)

That one paragraph attracted more attention in the UK that the entire report, which documents exponentially more violations by the Americans, did in the United States. In fact, I only found the UN report because the UK 's reaction made more news in the US that the report itself. The Associated Press (AP), in an article rather misleadingly titled “ Authors Defend Claim on UK Secret Prisons,” reported:

The authors of a U.N. report on the use of secret prisons in the fight against terrorism defended on Wednesday their claim that Britain was among countries complicit in the practice, even as the U.K. government dismissed the allegation as unsubstantiated and irresponsible….

The report explicitly mentions Britain as a country that was complicit in secret prisons, based on the claims by former detainees who say U.K. agents provided questions for, or were present at, interrogations conducted by intelligence services of another country.

The report refers to the case of Binyam Mohamed, an Ethiopian-born British resident who was arrested in Pakistan and allegedly tortured there and in Morocco before being flown to the U.S. detention center at Guantanamo Bay in Cuba.

In its statement the British Foreign Office said: “there is no truth in the suggestion that it is our policy to collude, solicit, or participate in abuses of prisoners.” It also rejected the suggestion that wrongdoing may have been covered up.

As we've seen already in Chapter 4, and as we'll follow in more detail in the chapter's conclusion, the British government's involvement in Binyam Mohamed's rendition and interrogation is being thoroughly investigated by both the Parliament and the courts, and the courts have clearly established that UK intelligence agencies passed questions through to Mohamed's interrogators in Morocco. What the British government continues to deny is that it knew the United States had essentially disappeared Mohamed and that Mohamed was being held and interrogated in Morocco. The facts suggest otherwise, of course, and investigations continue in Britain.

It was because of these investigations that the UN report resonated in England last week and the UK government felt compelled to contest the report's conclusion about its complicity. Meanwhile, in the country whose role in the secret detention of Binyam Mohamed and hundreds of others goes beyond complicity, to that of instigator and ringleader, the U.S. government did not even feel the need to defend or explain itself publicly.

According to the AP, “A spokesman for the U.S. mission in Geneva, Dick Wilbur, said the United States was still reviewing the report.”

"A Ponzi Scheme of Torture"

Today we post the first of two parts of Chapter 4, “A Ponzi Scheme of Torture.”

This chapter connects the interrogations of Abu Zubaydah, Jose Padilla, and Binyam Mohamed, three people who were allegedly involved in a ‘dirty bomb' plot that grew more fantastical the more the men were tortured. It traces how torture begat torture, first because bad information extracted through abusive interrogations led to more torture and more bad information, and finally because interrogations were being conducted not only, as the Bush administration has insisted, to produce new intelligence to thwart impending attacks but also to force confessions and extract information that it would use to justify its detention and torture of others.

At the center of this Chapter's “Ponzi scheme of torture” is Binyam Mohamed, a UK-based Ethiopian émigré who was arrested in Pakistan in April 2002, abused, flown to Morocco and tortured for 18 months, then flown to a secret CIA prison in Afghanistan , where he was again tortured, and finally delivered, in September 2004, to Guantánamo. Once called Jose Padilla's accomplice in several diabolical terror plots and identified, with Abu Zubaydah, as the source of information about those planned attacks, Mohamed was released last year and is now living as a free man in London.

Part 1 of this Chapter, which we are posting today, is called “The Scheme;” Part 2, which will be posted next week, is entitled, “The Story Unravels.”

More Documents, Another Signature

The other day I had on my desk those six samples of Jose Padilla's signature; today it's the signature of President Bush on this November 20, 2005 order transferring Padilla “from detention by the Secretary of Defense” and “to the control of the Attorney General for the purpose of criminal proceedings against him.”

While the far more controversial Bush-signed document relating to Padilla is this one, the June 9, 2002 order transferring him into military custody where he was held for almost 2 ½ years, much of it in nearly complete isolation, there's a starkness and imperiousness of tone in the November 20, 2005 memo that hints at the essential issue Padilla's detention in military custody raised: does one man have such absolute and unchecked power to decide the fate of another?

Tempering that impression of authority, of course, is the fact that the November 20, 2005 memorandum, one of a small bundle of Defense Department and Justice Department Office of Legal Council documents delivered to the ACLU last week, was issued six days before the White House would have had to file arguments in the Supreme Court's review of Padilla habeas corpus petition—a review the administration looked destined to lose.

This and most of the other documents in this bundle were already public, like this speech Alberto Gonzales delivered on February 24, 2004 to the American Bar Association Standing Committee on Law and Security that seeks to justify the administration's losing position on Padilla. But even these are worth reading or rereading, because documents have a way of accruing meaning over time, the way the president's November 5, 2005 order and Gonzales's defense of the legally indefensible have.

My favorite document in this just-released group is this one, a sequence of entirely redacted emails back and forth to Stephen Bradbury following a White House press conference on the day the New York Times broke the news of the existence of the two secret May 10, 2005 Bradbury torture memos. The email chain attaches a transcript of the press conference, notable for the aggressive questioning of the press corps, including this exchange between White House Press Secretary Dana Perino and Helen Thomas;

Q: How can you say that—how can you say with assurance that we don't torture if you don't know what was in the—

 MS. PERINO: Because we follow the law.

 Q: --if you don't know what was in the other opinions, the classified opinions?

 MS. PERINO: Because all of the opinions and all of the discussions, everything has to be within the law and the policy, and the policy of the United States is that we don't torture.

 Q: Well, we'd like to believe that, but there's no way to assure us, is there?

 MS. PERINO: I think to a certain extent, yes, and that's why we have, for example, that December 4 2004 opinion that lays out broadly how we interpret the law.

 Q: Taking your word for it, though, is not true—

 MS. PERINO: Well, I think that the American people can understand—I believe that the American people can understand why there are certain pieces of information and tools that we use in the global war on terror that remain classified in order to protect them—

 Q: Why do you believe that?

 MS. PERINO: --and I believe they have every right to know that.

 Q: Why do you believe they are not disgraced and shamed when torture is attached to our name?

 MS. PERINO: Helen, the United States policy is not to torture, and we do not.

 Q: I hear what you're saying, the policy. But what do we really do—

 MS. PERINO: The American people have every right to be very proud of what we've done, and we have not had another terrorist attack on this country. And they should be glad of that, as well.

 Q: So the end justifies the means.

 MS. PERINO: Our end is that we don't—our means are that we don't torture, and the end result is that we've not had a terrorist attack.

 Oh, to read Bradbury's reaction in those redactions.

Isolation and Torture

It says something about the extreme isolation in which many so-called high value detainees were held, and the extreme secrecy surrounding their circumstances and treatment, that something as simple as a detainee's signature can seem startling.

This week, reading through a sequence of documents that were released to the ACLU in 2008, I found myself staring at not one, but six copies of Jose Padilla's signature.

The first two are on documents he was required to sign on his arrival at the naval brig in Charleston, South Carolina on June 10, 2002, acknowledging the brig rules (“No sitting or lying on your rack between reveille and taps unless you are on medical bedrest; likewise, you may not lie on the floor”; “All meals will be eaten in your cell; you must partake of all meals”; “You may not drill or march in military formation for any purpose except as authorized and directed by the facility commander”; etc.). The other four sign documents with the subject “Approved Request for Telephone Use,” all of which begin “You have been approved the use of the facility's telephone to call your mother for the time period specified below.” The approvals contain a list of rules for the conversation such as “The entire telephone call will be monitored” and “No discussion of the interrogation process.”

The earliest of these is dated December 6, 2004—two and one half years after he'd signed in at the brig. For almost two years of that time, Padilla's lawyers have asserted in a lawsuit he has filed against John Yoo, “Mr. Padilla was deliberately denied all contact with persons outside the military brig, including his family and lawyers. During this period, Mr. Padilla's only human contact was with interrogators during interrogation sessions, or with guards when they delivered his meals through a slot in his cell door, or escorted him to the shower or the concrete cage in which he was intermittently permitted to exercise.”

To get a sense of the effect of those kinds of conditions, all you have to do is read through the rest of the documents in that same batch. These are emails between those who were guarding Padilla and Yasar Hamdi and Ali Saleh Kahlah al-Marri—the two other detainees the U.S. held as enemy combatants in naval brigs under similar conditions—and their superior officers. Many of these messages express serious misgivings about the conditions of their detention and implore their superiors to increase their privileges and contact with the outside world.

Against a backdrop of cruel, inhuman, and degrading treatment, these are some of the most human, and humane, things that I have read so far. There are also a vivid illustration of why prolonged incommunicado detention is itself considered a form of torture.

Here is one particularly moving example, this one concerning Yasar Hamdi:

Tuesday June 03, 2003, 17:55
Subject: CARE OF DETAINEE USCIT [redacted]

I saw the detainee this morning during routine daily rounds and found him to be in low spirits and somewhat depressed. When I questioned him concerning his mood he indicated he was having problems sleeping again and continues to have the same re-occurring bad dreams as before. He indicated he feels very stressed due to the incarceration and being here now for almost (14) months, with no news pertaining to his future. He wanted me to know that he understands we are doing everything we can here at the facility to make him as comfortable as possible and that he has no complaints with my staff or their treatment of him, but that does not help how he feels and that he is finding it increasingly difficult dealing with the incarceration. I told him I had no new information pertaining to his length of stay, that we continue to push incentives as a means to keep his mind off the incarceration [redacted]…. He went on to indicate that he feels as if has been forgotten and that no one is working on getting him freed. I could only tell him this was not the case and that he needs to continue to put his faith in his god and that I and his family would view his giving up at this juncture, as being a failure and the last thing that I wanted to have happen was to send him anywhere from here as a “Basket Case,” of use to no one, to include himself. I continue to point to his family's support and the goals he has set for himself, as reasons to continue to be strong despite the circumstances and uncertainty. He indicated he would continue to endure, but he did not leave me with a good impression that he is capable of going on much longer…. Sir are there any new developments with regard to the detainee's fate that can be passed along. I know I can not give him any false hope, but I fear the rubber band is nearing its breaking point here and not totally confident I can keep his head in the game much longer. I will continue to monitor his behavior and get [redacted] and [redacted] aboard, but fear that once this individual decides to go south, there will be little if anything, I can do to bring him back around. I have directed my staff to pay close attention to his behavior, to pick up their discussions with him and that I will conduct evening rounds in an effort to assure him we are concerned about his state of mind and health and welfare.
 

New Morsels on the Destruction of the Tapes

New materials released last week in the ACLU’s ongoing FOIA proceedings seeking documents on the destruction of the torture videotapes add some details to the narrative in Chapter 3.

The materials are Vaughn indexes containing brief descriptions of 165 internal CIA electronic communications relating to the reasons behind the destruction of the tapes. The CIA continues to withhold the documents themselves, but descriptions of several of the documents are illuminating.

A few of the things we learn:

  1. The conversation about destroying the tapes began during the torture of Abu Zubaydah. Two cables sent from the black site to CIA headquarters on August 19, 2002 discuss “lessons for the future based on CIA experience” and an August 20, 2002 cable discusses “a proposed policy regarding the use of videotapes in interrogations.”
  2. There were extensive conversations about destroying the videotapes in December 2002, right after a CIA lawyer had traveled to the Thai black site to review the tapes and just as the CIA’s inspector general was beginning his special review of the CIA’s RDI program. This conversation, carried out in numerous cables between December 19 and the end of the month, included “proposals on how to handle the possible destruction of the videotapes” and culminated in a memo to CIA Director George Tenet on “the disposition of the videotapes.”
  3. Chapter 3 suggested that, after the July 38, 2003 Principals meeting, the question of the tapes “seemed settled” until the publication of the Abu Ghraib photos in April 2004. In fact, the Vaughn index shows the conversation continuing even during this period, with a sequence of emails around September 22, 2008 “concerning a draft memo on the destruction of the videotapes” and a February 19, 2004 email with attachment “concerning the legalities as to whether the CIA is legally required to retain the videotapes.”
  4. There are numerous emails in the days leading up to destruction of the videotapes on November 8, 2005, just after the Washington Post published Dana Priest’s front-page exposé of CIA secret prisons and the day before The New York Times published a story on the CIA inspector general’s damning report. The CIA is clearly bracing for these leaks: on October 31, there is a 13-page email chain “discussing whether to publically acknowledge the counterterrorism program” and on November 1, an email with attachment “that discusses the Agency’s detention and interrogation program from a legal standpoint.” There are communications orchestrating how the agency will talk about the destruction of the tapes—a November 4 email “that contains proposed language regarding the disposition of the tapes,” and a November 10 email with the subject “Language for tapes” that discusses “communication between CIA officers relating to the tapes.” Finally, there are destruction orders themselves: a one-page cable on November 8 from the black site to headquarters “requesting permission to destroy the videotapes” and a two-page cable that same day, under the subject “Approval to destroy videotapes,” “discussing a proposal and granting permission to destroy.”

Interestingly, in a related affidavit summarizing the agency’s reasons for continuing to withhold these communications, the CIA says it was willing to release parts of thirteen of the documents.

Prior to releasing the documents, however, the Agency was informed by the Department of Justice that Special Prosecutor John Durham was asserting Freedom of Information Act (FOIA) Exemption (b)(7)(a) over the proposed-for-release portions of 10 of the 13 documents that the CIA was prepared to release in part. The other three documents the CIA proposed for partial release have Congressional equities that require consultation with Congress before a final determination can be made. Therefore, all of the documents are currently withheld in full.

The three documents being withheld pending consultation with Congress relate to the February 2003 briefings of two members each of the House and Senate Intelligence Committees—the briefings that prompted Jane Harman’s letter counseling against destroying the tapes.

The 10 documents that Durham is apparently blocking from release, on the grounds that their release would interfere with an ongoing criminal investigation, are:

  1. a 11/9/05 email with embedded cable “confirming the destruction of the videotapes that were stored at a field location”;
  2. an 10/25/02 cable from CIA Headquarters to the field “discussing a proposal to destroy the videotapes”;
  3. a 10/27/02 document consisting of “excerpts of two cables discussing the use of the videotapes”;
  4. a 12/02/02 cable with the subject “Destruction of classified materials” that contains “excerpts from two cables discussing a proposal to destroy the videotapes;
  5. a 12/03/02 cable with the same subject line “discussing the proposed destruction of classified material”;
  6. the 11/08/05 cable requesting permission to destroy the videotapes;
  7. the 11/08/05 cable granting permission to destroy the videotapes;
  8. an undated memo that is a “two-page timeline” “regarding the destruction of the AZ tapes;
  9. an undated three-page memo with the subject line “Interview Questions” that is a “list of questions regarding the CIA’s RDI program”; and
  10. an undated document with the subject “CIA Interrogation Techniques” that is a “thirteen-page memo with handwritten marginalia discussing the CIA’s interrogation of Abu Zubaydah.”

 

We know from these most recent Vaughn indices, which follow similar indices of documents relating to the tapes’ destruction that the CIA has forwarded to the ACLU in recent months, that there is a substantial paper trail surrounding the destruction of the videotapes. We know Durham has been down that trail. Where is his investigation going?

"Not Well For Anyone"

For me, the one astonishingly honest moment of John Stewart's Daily Show interview with John Yoo two nights ago, a moment that didn't make it into the televised version, came about two and a half minutes in, when Stewart, in his way, first raises the subject of the legal memos Yoo authored.

“I read the briefs that you wrote on torture—” he begins. “And by the way, I didn't finish them, so don't tell me how it ends.”

Yoo laughs for a second, and then grows serious, leans forward, and says emphatically, “Not well for anyone.”

If Stewart had just stopped right there and pressed Yoo to unpack that remarkable admission, we might have watched a significant landmark on the road to accountability.

“That's interesting,” he might have said. “Not well for anyone. Let's expore that. You're saying, not well for those we tortured. Not well for the torturers. Not well for those who authorized or rationalized the torture. Not well for you. Not well for those who came after you, and for those now struggling with how to prosecute cases tainted by torture. Not well for me. Not well for your fellow citizens here in the studio. Not well for the country. Not well for anyone on earth.

[Pause]

“Wow. Great. I tell you what: let's forget these note cards and just spend the next half hour talking about that.”

Instead, Yoo, and the conversation, quickly retreated onto his turf, a mixture of musings on the vast elasticity of presidential powers and a fact-discredited narrative that “we had amazingly captured the number three guy in al-Qaeda, which is an amazing coup” and “the guy was resistant to interrogation.” Stewart, who at the outset conceded the argument on legal questions, saying he found the constitutional questions “gobblety-gook,” never challenged that narrative, and never brought the conversation back down to that early, startlingly human level.

The fact is, “not well for anyone” is the way torture and abuse always ends. Admitting that this is how it has ended in America 's post-9/11 experiments with torture is a huge step, and Stewart should've just let Yoo, who leaned forward to say this, actually take it.

The Fruits of Torture

In Chapter 4, which I'll begin posting next week, I look at how torture begat torture - how bad information extracted through abusive interrogations led to the apprehension of others, who were in turn tortured until they, too, provided bad information.

At the center of the story is Binyam Mohamed, an Ethiopian émigré living in the UK who was arrested in Pakistan in April 2002, taken into U.S. custody, flown to Morocco, where he was tortured for 18 months, then flown to a secret CIA prison in Afghanistan where he was again tortured, and finally delivered, in September 2004, to Guantanamo, where he remained until he was released last year. Binyam Mohamed, who today is a free man living in London, is one of five plaintiffs who are suing Jeppesen Dataplan Inc., a subsidiary of Boeing, for providing logistical support to the CIA's illegal extraordinary rendition flights.

One of the remarkable documents I keep referring to as I make my way through the chapter is the November 17, 2009 ruling of Federal District Judge Gladys Kessler in the habeas corpus petition of another Guantánamo detainee, Farhi Saeed Bin Mohammed. The government's case that Farhi Saeed Bin Mohammed was an enemy combatant hinged on information Binyam Mohamed had provided that they had spent time together at an al-Qaeda training camp in Afghanistan. That information was likely the fruit of torture, Judge Kessler found, and ordered the government “to take all necessary and appropriate diplomatic steps to facilitate [Farhi Saeed Bin Mohammed's] release forthwith.” (He becomes the 31 st detainee to prevail in a habeas corpus petition since the Supreme Court affirmed the right of Guantánamo prisoners to raise such claims in U.S. courts.)

In one particularly striking passage in her opinion, Judge Kessler rejects the government's assertion that because Binyam made the allegations about Farhi Saeed Bin Mohammed during relatively benign interrogations after arriving at Guantánamo, rather than during his earlier torture in Morocco and Afghanistan, the information should be admissible in the habeas corpus proceeding. Citing new studies on the neurological and psychological impact of abusive interrogations, she writes:

Torture and “enhanced interrogation techniques” employed by the government during the War on Terror have been shown to be “geared toward creating anxiety or fear in the detainee while at the same time removing any form of control from the person to create a state of total helplessness.” Metin Basoglu, M. D., PhD., et al., Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent? 64 Archives of Gen. Psychiatry 277, 283 (2007). Indeed, rates of Post-Traumatic Stress Disorder ("PTSD") in torture survivors far exceed the rate among the general population. Physicians for Human Rights, Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, 43-44; 43 n.337 (Aug. 2007), available at http://wwww.physiciansforhumanrights.org/library/documents/report s/leave-no-marks.pdf (collecting journal articles that report rates for torture victims higher than 3.6% rate of PTSD among general population).

According to a new study about to be published in a peer-reviewed journal, "prolonged and extreme stress has a deleterious effect on frontal lobe function," Shane O'Mara, Torturing the Brain: On the Folk Psychology and Folk Neurobiology Motivating "Enhanced and Coercive Interrogation Techniques" Trends in Cognitive Sciences _ (forthcoming) (manuscript at 2), available at http://download.cell.com/trends/cognitive-sciences/pdf/PIIS1364661309001... (published Sept. 24, 2009).

A common consequence of coercive interrogation techniques is "confabulation," or the "pathological production of false memories." As the author explains, "[s]tress causes heightened excitability or arousal in the brain and body. Experiencing stress causes release of stress hormones (cortisol and catecholamines. [which] provoke and control the 'fight or flight' response that, if overly prolonged, can result in compromised cognitive neurobiological function (and even tissue loss) in [the prefrontal cortex and hippocampus]." Id. at 1. Because of these physiological reactions, the brain areas function improperly, and "both memory and executive functions (intention, planning[,] and regulation of behavio[]r) can be impaired." Id. The study specifically addresses the "folk psychology that is demonstrably incorrect" underlying adoption of enhanced interrogation techniques. Id. at 1.

The author concludes that "[i]t is likely to be difficult or perhaps impossible to determine during interrogation whether the information that a suspect reveals is true: information presented by the captor to elicit responses during interrogation might inadvertently become part of the [subject's] memory, especially because [subjects] are under extreme stress and are required to tell and retell the same events that might have happened over a period of years." Id. at 2.

In this case, even though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans, and to Special Agent [redacted], there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States. Captors changed the sites of his detention, and frequently changed his location within each detention facility. He was shuttled from country to country, and interrogated and beaten without having access to counsel until arriving at Guantánamo Bay, after being re-interrogated by Special Agent [redacted]. See JE 72 (declaration of Binyam Mohamed's attorney, Clive Stafford Smith, stating that he did not meet with client until May of 2005).

From Binyam Mohamed's perspective, there was no legitimate reason to think that transfer to Guanáanamo Bay foretold more humane treatment; it was, after all, the third time that he had been forced onto a plane and shuttled to a foreign country where he would be held under United States authority. Further, throughout his detention, a constant barrage of physical and psychological abuse was employed in order to manipulate him and program him into telling investigators what they wanted to hear. It is more than plausible that, in an effort to please Special Agent [redacted] (consistent with how captors taught him how to behave), he re-told such a story, adding details, such as Petitioner's presence at training, which he thought would be helpful and, above all, would bring an end to his nightmare.

From the New Batch

One of the most fascinating aspects of huge caches of official documents is how, the more you look at them, the more human, and less coldly bureaucratic, they reveal themselves to be.

Last week, the Justice Department released another round of documents in response to the ACLU’s torture documents FOIA, these mainly connected to the DOJ’s Office of Inspector General’s 2008 review of the FBI’s involvement in interrogations in Guantánamo, Afghanistan, and Iraq.

Two in particular caught my eye.

The first is, on the surface, one of the least personal of the bunch. This 6-page document (which begins on page 25 of this batch), headed “Potentially Relevant Federal Criminal Statutes,” simply lists the laws under which abusive interrogators might be tried – not just the torture and war crimes statutes, but also federal laws barring assault, maiming, sexual abuse, obstruction of justice, conspiracy, and others.

The second, on the opposite end of the spectrum, is 9 pages of handwritten notes evidently summarizing interviews with FBI agents in Guantánamo (this document begins on page 13 of this batch). It includes such striking notations as:

Camp X-ray was locale where harsh techniques were used.

“if you think this is tough – you should see what’s happening in Afghanistan”

and

#63

-- During [illegible] meeting [name redacted] learned he was in hospital w/ hypothermia
-- [name redacted] asked about him
-- Colonel: not hypothermia. Low core temp & low B/P. Corpsman was present

            Clear to [name redacted] that they didn’t get it.

and

            BAU – not effective but also skews into abuse
                        -- stuff w/in boundary of their guidelines just gets out of control

It is the kind of document you can spend hours staring at, first deciphering the handwriting, then trying to connect shorthand references to what is known about the cases they refer to (#63 is Mohammed al-Qahtani), and then trying to picture the conversations the notes summarize.

And yet I keep returning to the first one, and the fact that, as Office of Legal Counsel attorneys were occupied with twisting and distorting the Torture Convention to accommodate SERE techniques and enhanced interrogation methods, someone took the time to sit down and simply list the laws prohibiting the kinds of treatment detainees were being subjected to in Guantánamo, Afghanistan, and Iraq. As such, it, too, is a very human document, striking in its intellectual and moral clarity.

 

Blowing Smoke

In one of her excellent annotations to Chapter 3, Marcy Wheeler called my attention to this document, which is simply a list that the military's Joint Personnel Recovery Agency (JPRA) prepared of "physical pressures" commonly used in the services' various "Survival, Evasion, Resistance, and Escape" (SERE) training programs. Like the JPRA memo quoted in the chapter that explicitly warned of the dangers and ineffectiveness of torture, the list was attached to a JPRA memorandum Office of Legal Counsel lawyers used to support the infamous August 1, 2002 torture memo.

As Marcy notes, one of the "pressures" on the list is blowing smoke in a detainee's face—a technique that we saw used in Chapter 2, in a January 2002 incident reported by a military interpreter in Afghanistan in 2002, and in Chapter 3, during the interrogation of Abd al-Rahim al-Nashiri in Thailand. Another is "Immersion in Water/Wetting Down," which we also saw in Chapter 3 and which obviously led to the death of the anonymous detainee at the Salt Pit site in October 2002.

And then there's this item:

Manipulation of diet: Purposeful manipulation of diet, nutrients, and vitamins can have a negative impact on the subject's general health and emotional state. Medical personnel in the POW camps in North Korea believe that a B vitamin compound was responsible, in large part, to the phenomena called "give-up-itis." Recent studies suggest the removal of certain amino acids from a diet can induce heightened levels of emotional agitation.

I now have this document pinned to the wall beside my desk -- as an easy reference to the many SERE techniques "reverse-engineered" for use in real interrogations, and as a reminder of their truly sinister origins.

Will There Be Prosecutions?

Today we post the fifth and final installment of Chapter 3, “Black Sites, Lies, and Videotapes.”

It is nearly two years since Attorney General Michael Mukasey made the announcement that, “Following a preliminary investigation into the destruction by CIA personnel of videotapes of detainee interrogations, the [Justice] Department's National Security Division has recommended, and I have concluded, that there is a basis for initiating a criminal investigation of this matter.” It has been months since John Durham, the US attorney assigned to the case, called several CIA officials before a grand jury.

Of course there are the tapes, and there is the conduct that the tapes would have provided a glimpse of – conduct the tapes' destruction was meant to conceal permanently from view. As the ACLU's Jameel Jaffer noted in a blog post yesterday on Daily Kos, the next few weeks will see a new series of tests of whether there will be a full public accounting of detainee mistreatment and abuse, and whether any of those who participated in, ordered, or aided and abetted the torture and cruel, inhuman, and degrading treatment of detainees will be brought to justice.

In writing Chapter 3, I was haunted by Judge Hellerstein's comment, quoted near the end of the chapter, about the difference between the very detailed descriptions of the CIA's interrogations like this one that have been made public and their application in practice. He reached this conclusion after reading just a few of the hundreds of classified cables that describe the interrogation sessions the videotapes had recorded. So much, clearly, remains to be seen.

The Destruction of the Tapes

It says something about the fundamental unsoundness of the Rendition, Detention, and Interrogation program—legally, practically, and ethically—that it depended on extreme secrecy, and that breaches of that secrecy were understood to pose a major existential threat to the program itself and a serious legal threat to those charged with carrying it out.

Today's installment, the fourth of the five sections that make up Chapter 3, tracks the fate of the tapes through two periods of crisis for the Bush torture program: the first, in May and June of 2004, beginning with the completion of Helgerson's report and the release of the Abu Ghraib photos and continuing through the leak of the August 1, 2002 torture memo (one of the most tumultuous periods on torture program timeline but one through which the tapes nevertheless survived); and the second, in November 2005, when The Washington Post revealed the network of secret CIA black sites and The New York Times broke the story that gave the first public account of the inspector general's investigation and his conclusions.

The torture tapes would not survive this second spate of leaks. Descriptions of CIA cables released last month (PDF) in the ACLU's ongoing Freedom of Information Act litigation revealed that the tapes were destroyed the same day The New York Times ranthe story on Helgerson's report, November 9, 2005.

What Would I have Seen? How Would I Have Reacted?

Today's third installment of Chapter 3 follows CIA Inspector General John Helgerson's inquiry into the black site torture program that led up to the publication of his Special Review in May 2004—and in particular, the conclusions he reached when he reviewed the videotapes of the Thai black site interrogations. We will never be able to see those interrogation tapes, but we have Helgerson's reaction as the best guide to we would have seen and how we might have felt if we had.

It seems to me those two questions—What would I have seen? And how would I have reacted?—are the two simple questions we should all be asking about the interrogations of detainees in US custody after 9/11. The documents are full of accounts by men and women who saw what was happening and had emphatic, clear reactions that it was wrong-Helgerson in this Chapter, the unnamed soldier who worked on an interrogation team in Afghanistan and reported an abusive interrogation in Chapter 2 are just two examples. So much was done, and is still being done, to keep us from seeing what was going on. But we are not without good guides.

On The al-Nashiri Interrogation

Today we post the second installment of Chapter 3, which includes a closer look at the torture of Abd al-Rahim al-Nashiri.

Al-Nashiri, of course, is one of the detainees Attorney General Holder addressed in his recent announcement about the trials of several Guantánamo prisoners. Although Holder announced that at least five will be tried in federal court, Al-Nashiri is among the group who will still be tried before a military commission. A few days ago the New York Times ran an interesting article exploring the controversy surrounding the decision to try some detainees in civilian courts and some in military commissions – a decision that appears to correlate closely to the quality of evidence in the cases.

At Al-Nashiri's Combatant Status Review Hearing in Guantanamo, his Personal Representative told the Tribunal:

The Detainee states that he was tortured into confession and once he made a confession his captors were happy and they stopped torturing him. Also, the Detainee states that he made up stories during the torture in order to get it to stop. The Detainee confessed under torture to the following events:

1. The French Merchant Vessel Limburg incident.

2. The USS COLE bombing.

3. The rockets in Saudi Arabia .

4. The plan to bomb American ships in the gulf.

5. Relationship with people committing bombings in Saudi Arabia .

6. Usama Bin Laden having a nuclear bomb.

7. A plan to hijack a plane and crash it into a ship.

Al-Nashiri himself told the Tribunal, "From the time I was arrested five years ago, they have been torturing me. It happened during interviews. One time they tortured me one way and another time they tortured me in a different way."

One of those ways was the mock execution using a handgun and a drill, which we cover in more detail in today's section.

The remaining three sections of Chapter 3 will be posted on Monday, Wednesday, and Friday of next week.

Eyes in the black sites

Why the CIA filmed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri in its secret prison in Thailand in 2002 and why it suddenly stopped filming; why the agency went back and forth with the White House about destroying those 92 tapes, why it didn't for three years, and why it ultimately did – in many ways the tale of the videotapes tracks the arc of the whole CIA black site torture program, from favored project of a White House inner circle that literally directed the action to a public relations disaster and potential legal nightmare.

Over the next week, I will be posting Chapter 3 of the Torture Report, which begins just before the CIA switched off the cameras in the black site and ends with a court hearing in New York this September over whether the CIA would be forced to release hundreds of documents that describe what the videotapes recorded. Until they are, the best information we have on what was on the tapes – and what went on in the black sites outside the view of the cameras – comes from the May 2004 report of the CIA's Inspector General (PDF), who traveled to the Thai dungeon to watch the tapes in May, 2003.

We post the first of Chapter 3's five sections today, and will add sections every day over the next week.

"Is It Humane"?

This past week, David Frakt, one of our Contributors for the report, sent me the following very illuminating response to my last diary post, “How Close to the Rack and Screw.”

David served as lead defense counsel for the Office of Military Commissions and represented several Guantánamo detainees including Mohammed Jawad, who was recently released. He traces some of the phrases quoted in the “Rack and Screw” questionnaire to the court rulings where they first appeared – and he notes that in the Jawad case in particular, a court affirmed the idea, present in some form in all of the cases the questionnaire alluded to, that torture and abusive treatment seriously jeopardize the government's ability to prosecute those it has abused.

His analysis is particularly timely and valuable in light of the announcement on Friday that five Guantánamo detainees who had been held both in secret CIA prisons, where they were subjected to the so-called “enhanced interrogation techniques” (including Khalid Shaikh Mohammed, who was waterboarded 183 times) will be transferred to the United States to stand trial in New York. Much is being made of the daunting legal challenges and procedural challenges these prosecutions will face. But as the legal history David cites makes clear, many of these challenges wouldn't exist if they hadn't been tortured in the first place.

Larry–

In reading your latest post about the mystery document, I recognized many of the quotes, and wanted to share the sources with you and our readers.

1.  Describe how each technique is consistent with “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them.” This is a quote from the Supreme Court opinion, County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998) ”in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them.”

2.  To what extent are the techniques designed to “instill stress, hopelessness, and fear, and to break resistance.” I believe that the source of this quote is a federal appellate opinion Cooper v. Dupnik, 963 F.2d 1220, 1229 (9thCir. 1992)  “ In accord with the plan, the record amply demonstrates that Cooper was subjected to Barkman's interrogation techniques designed to instill stress, hopelessness, and fear, and to break his resistance.” 

This case sets forth a standard for what it takes to overcome the qualified immunity standard in a civil rights lawsuit against government officials. The Supreme Court denied certiorari on this case. Here is the Lexis-Nexis overview of Cooper v. Dupnik:

Pursuant to their plan to extract a confession to serial rapes, appellant police officers deliberately ignored appellee detainee's requests for counsel and subjected him to intense custodial interrogation. After appellees, detainee and family, brought suit under 42 U.S.C.S. § 1983 against appellants, city and officers, for violation of his U.S. Const. Amend. V and XIV rights, the trial court denied appellants' defense of qualified immunity. Appellants sought review, arguing that the interrogation contravened the Miranda standards but was not a violation of constitutional rights. The court affirmed and ruled that the privilege against self-incrimination applied to custodial questioning as well as court proceedings, that the privilege included the right to remain silent and to have counsel present, and that no immunity shielded a deliberate constitutional violation. The court also ruled that the failure to extract a confession or to charge a crime was irrelevant, that extraction of a statement with any evidential value denied due process, and that the right to remain silent was breached and due process violated effective with the physical or psychological coercion.

3. Do any of the techniques cause “severe mental distress or suffering”? This language paraphrases the Convention Against Torture, Article I: “torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession”  The prohibition on torture in the CAT has been codified into U.S. criminal law in the U.S. War Crimes Act, which provides the following definition of torture: “ an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession” 18 U.S. C. § 2441 (d) (1)(A)

4. How close is each technique to the “rack and screw”? This is a quote from Rochin v. California, 342 U.S. 165, 172 (1952) , a Supreme Court case which established the premise that evidence derived from outrageous government conduct could be excluded and convictions based on such evidence could be overturned.  The full quote from Rochin:   This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents -- this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”

5.  Do the techniques “offend hardened sensibilities”? Another quote from Rochin v. California , 342 U.S. 165, 172 (1952)

6.  Do the techniques violate “the whole community sense of decency and fairness that has been woven by common experience into the fabric of acceptable conduct”? This is a quote from another Supreme Court case, Breithhaupt v. Abram , 352 U.S. 432, 436 (1957) : Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of "decency and fairness" that has been woven by common experience into the fabric of acceptable conduct. It is on this bedrock that this Court has established the concept of due process.”  (A sphygmogram is a tracing made by a sphygmograph and consisting of a series of curves that correspond to the beats of the heart.)

7.  Do the techniques “violate the decencies of civilized conduct”? Another quote from Rochin v. California , 342 U.S. 165, 173 (1952): “It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. These decisions are not arbitrary exceptions to the comprehensive right of States to fashion their own rules of evidence for criminal trials. They are not sports in our constitutional law but applications of a general principle. They are only instances of the general requirement that States in their prosecutions respect certain decencies of civilized conduct. Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend "a sense of justice."

8.  Are the techniques “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience”? This is a quote from another U.S. Supreme Court opinion, County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998) : I n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them. 

The County of Sacramento quote is a paraphrasing of Rochin v. California , This is conduct that shocks the conscience.”

What the series of questions in this mystery document suggests is that those reviewing the interrogation techniques were concerned that the use of the techniques could subject them to criminal charges for torture or civil lawsuits for damages, and could result in the exclusion of the evidence obtained and/or dismissal of entire charges in subsequent criminal prosecutions of the persons being interrogated utilizing the proposed techniques on the basis of a due process violation.

This questionnaire also shows the author's awareness that the Supreme Court would likely find that Constitutional due process standards would apply to detainees when ultimately tried, even in military commissions.

This series of questions highlights the importance of the President's decision that the Geneva Conventions, even Common Article 3, did not apply to those captured in the war on terror. If these standards applied, then you wouldn't need all these questions, because you would only need to ask one question about any proposed interrogation technique: “Is it humane?” (Common Article 3 requires that persons detained in an armed conflict “shall in all circumstances be treated humanely.”) “Is it humane?” is the one question you will never see in any of the Bush Administration memos.

The reason that I recognize so many of these quotes is that I used them in my motion to dismiss the charges against my client Mohammed Jawad (a former Guantánamo detainee, now released) on the basis of torture, utilizing the “outrageous government conduct” standard.  The motion and government response can be found here. Although the judge did not grant the motion to dismiss, he did affirm that he had the power to do so, reaffirming the viability of this doctrine, even in military commissions. The opinion is available here.

(Emphasis added.)

How Close to the “Rack and Screw”?

On Friday, the government released a new round of documents in the ongoing Freedom of Information Act litigation, among them several that the CIA and Justice Department's Office of Legal Counsel claimed they'd missed on previous searches of their files.

One of these documents (PDF) is a mysterious one-page questionnaire that reads in its entirety:

  1. Describe the importance of each technique as applied to this person. What do you reasonably hope to accomplish? Describe past successes of each technique in detail.
  2. Describe how each technique is consistent with “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them.” Describe any other traditions – in state law, or in foreign practice – in which these techniques are used or approved.
  3. To what extent are the techniques designed to “instill stress, hopelessness, and fear, and to break resistance.”
  4. Do any of the techniques cause “severe mental distress or suffering”?
  5. How close is each technique to the “rack and screw”?
  6. Do the techniques “offend hardened sensibilities”?
  7. Do the techniques violate “the whole community sense of decency and fairness that has been woven by common experience into the fabric of acceptable conduct”?
  8. Do the techniques “violate the decencies of civilized conduct”?
  9. Are the techniques “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience”

Leave aside the shock of seeing the phrase “rack and screw” in a document evidently intended for someone preparing or approving an interrogation plan. What I find deeply disturbing is the way it mirrors and encourages the kind of sophistry that pervaded the OLC's torture memos.

Take for example the phrases “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them” and “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience.” An analysis of the OLC memos (PDF) that the Senate Intelligence Committee and the Justice Department prepared jointly and declassified earlier this year describes how the OLC navigated its way through the legal landscape:

OLC also concluded that the techniques in the CIA program were not objectively “egregious” or “outrageous” in light of traditional executive behavior and contemporary practice. In reaching that conclusion, OLC reviewed U.S. judicial precedent, public military doctrine, the use of stressful techniques in SERE training, public State Department reports on the practices of other countries, and public domestic criminal practices. OLC concluded that these sources demonstrated that, in some circumstances (such as domestic criminal investigations) there was a strong tradition against the use of coercive interrogation practices, while in others (such as with SERE training) stressful interrogation techniques were deemed constitutionally permissible. OLC therefore determined that use of such techniques was not categorically inconsistent with traditional executive behavior, and concluded that under the facts and circumstances concerning the program, the use of the techniques did not constitute government behavior so egregious or outrageous as to shock the conscience in violation of the Fifth Amendment.

In other words, the only examples the OLC can point to where “contemporary practice” includes the enhanced interrogation methods are the military's SERE training – where they are used in carefully controlled scenarios to mimic the torture methods of authoritarian regimes – and in countries whose detention and interrogation practices are criticized in the U.S. State Department's annual human rights reports. And so, despite the fact that in both those situations we call the methods what they are, torture, somehow, by virtue of the fact they're used somewhere, they don't shock the conscience.

Ineffective, Short-sighted, and Wrong

One of the most striking things to me as I work my way through the documents is how much opposition there was to the Bush torture program, from within the administration and from men and women in the U.S. military and intelligence services, from the very beginning.

Chapter 2 recounts a showdown between an FBI interrogation team and the CIA team led by the psychologist Dr. James Mitchell in a secret CIA prison in Thailand over the treatment of Abu Zubaydah. That confrontation led FBI Director Robert Mueller to prohibit FBI interrogators from participating in any interrogations involving techniques the FBI does not normally use in questioning suspects in the United States – a policy that remained in effect throughout the Bush administration.

That policy, which came to include instructions to FBI agents to report incidents of detainee abuse, gave rise to one of the most important summary documents available, the May 2008 report by the Justice Department's Office of the Inspector General (OIG) entitled, A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq (PDF).

Recounting the clash over Zubaydah's interrogation, the OIG's report describes a 2002 meeting with Director Mueller, FBI Assistant Director for Counterterrorism Pasquale D'Amuro, and Andrew Arena, Section Chief of the FBI's International Terrorism Operations. “Arena stated that there were discussions with the FBI regarding “should we go down that track?” the report relates. “Arena told the OIG that during the meeting D'Amuro predicted that the FBI would have to testify before Congress some day and that the FBI should be able to say that it did not participate.”

The architects of the torture program often cite the atmosphere in the immediate aftermath of the September 11, 2001 terrorist attacks as a justification for harsh interrogations. CIA Director George Tenet, in a 2007 60 Minutes interview, insisted:

…So the context is it's post-9/11. I've got reports of nuclear weapons in New York City , apartment buildings that are going to be blown up, planes that are going to fly into airports all over again. Plot lines that I don't know—I don't know what's going on inside the United States. And I'm struggling to find out where the next disaster is going to occur. Everybody forgets one central context of what we lived through: the palpable fear that we felt on the basis of the fact that there was so much we did not know.

But operating in the same climate, the FBI – the one agency with real interrogation experience and a proven record of eliciting information from al-Qaeda detainees – declared from the outset that abusive interrogations were ineffective, short-sighted, and wrong.

Experimenting with Torture

Today we post Chapter 2 of the report, “Experimenting with Torture.”

The chapter chronicles the development of the so-called “Enhanced Interrogation Techniques” and their carefully-orchestrated application during the interrogation of Abu Zubaydah in a CIA black site in Thailand in the spring and summer of 2002. In it, Zubaydah himself speaks; his statement to the International Committee of the Red Cross (PDF), which was finally allowed to visit 14 “high value” detainees after they were transferred to Guantanamo in 2006, is one of the few first-hand accounts we have describing interrogations in the secret CIA prisons.

“I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied,” Zubaydah tells the ICRC. “It felt like they were experimenting and trying out techniques to be used later on other people.”

The more we learn about his interrogation, the more we see how right he was.

Words and Images

The question of the power of words versus the power of visual images is on my mind this week as I work through this section describing the interrogation of Abu Zubaydah at the secret CIA dungeon in Thailand. Ninety of the 92 videotapes the CIA destroyed in 2005 recorded that interrogation, which took place from April though August on 2002 and culminated in 83 sessions of waterboarding. Just knowing those tapes existed exerts a subtle pressure on the imagination. Now, when you read a description of Zubaydah being swung around by a collar and slammed against a wall, your mind's eye is sometimes drawn to a wider, surveillance-camera angle: he's naked, you remember.

Last week, the Center for Constitutional Rights won a court order disclosing that the government has videotapes of the interrogation of Mohammed al Qahtani. The minute-by-minute log of that 7-week interrogation in Guantánamo in late 2002 and early 2003 is essential reading to have any understanding, for example, of what “sleep deprivation” means. But it must be an altogether different experience to watch videotape of something like this:

Interrogators began telling detainee how ungrateful and grumpy he was. In order to escalate the detainee's emotions, a mask was made from an MRE box with a smiley face on it and placed on the detainee's head for a few moments. A latex glove was inflated and labeled the “sissy slap” glove. This glove was touched to the detainee's face periodically after explaining the terminology to him. The mask was placed back on the detainee's head. While wearing the mask, the team began dance instruction with the detainee. The detainee became agitated and began shouting.

Whether anyone outside of government ever sees this video of course remains to be seen. The Supreme Court is in the process of deciding whether it will hear the government's appeal of a federal court ruling ordering the release of perhaps hundreds more photographs depicting abuse of detainees in U.S. custody in Iraq and Afghanistan. Like the Bush administration, the Obama administration insists that releasing the photos would fan anti-Americanism and extremism, endangering U.S. troops in the region. Last week, House and Senate conferees moved toward endorsing that position, approving language for the defense appropriations bill that included an amendment sponsored by Joe Lieberman and Lindsey Graham allowing the Secretary of Defense to determine what images the public can see. The House will likely pass the bill later today, with the Senate likely passing it within the next in the next couple of weeks.

As we learned when photos of the abuse of detainees in Abu Ghraib were leaked to the press in 2004, images of torture and abuse do provoke powerful reactions. What we're reacting to, though, is the treatment, not the images. No amount of erasure or concealment can undo the fact that the treatment occurred – and that, in these cases, it was witnessed and recorded.

What’s In Those Cables?

Next week I'll be adding a section to the Report about the interrogation of Abu Zubaydah at a CIA black site.

It is the videotapes of this interrogation that the CIA destroyed in November 2005. Earlier this week, in a hearing in a contempt case arising out of the destruction of those tapes , the ACLU pressed again for the release of 580 documents that describe what they portrayed – the vast majority of which are cables sent from the black site to CIA headquarters, sometimes as many as 9 in one day, from April to November of 2002.

I've had a list of these documents in front of me as I've been working through this chapter. With so much now documented about the treatment of Abu Zubaydah, it's chilling to stare at this list and try to imagine what else these documents that the CIA still refuses to release – and the tapes no one will ever see – might reveal.

On the Contributors and books

As I mentioned, we’re thrilled to have several of the most knowledgeable people in the country serving as Contributors to the Report. The group includes Matthew Alexander, a former senior military interrogator who led an elite interrogation team in Iraq; David Frakt, who served most recently as Lead Defense Counsel for the Office of Military Commissions in D.C. and Guantanamo; former constitution law attorney and contributing Salon.com columnist and blogger Glenn Greenwald; Joanne Mariner, who directs Human Rights Watch's Terrorism and Counterterrorism Program; Deborah Popowski, who has worked for the Center for Constitutional Rights, the UN Special Rapporteur on Torture and the UN Committee against Torture; private investigator, attorney, and writer John Sifton; and writer and blogger Marcy Wheeler. Their contributions to what we now know about the Bush administration’s torture program have been enormous.

They will be joined at the outset by attorneys from the ACLU’s National Security Project and in the future by some of the many other researchers, writers, journalists and lawyers who are working to expose and document torture and mistreatment of detainees in U.S. custody. The feedback from these Contributors, which will appear as annotations throughout the text, is an essential part of the report-writing process.

And I also mentioned good books. Here are three indispensible ones, for starters: Jane Mayer’s The Dark Side (Doubleday, 2008); Philippe Sands’ Torture Team: Rumsfeld's Memo and the Betrayal of American Values (Palgrave Macmillan, 2008); and Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond, by Jameel Jaffer and Amrit Singh (Columbia University Press, 2007)

Piecing together Bush's torture program

Today we launch The Torture Report. On this site, over the next several months, we will construct a comprehensive account of the Bush administration’s torture program.

The goal is simple: to tell the whole story and to get it right. How to do this – how to bring together everything we know from tens of thousands of formerly secret documents, from official and independent investigations, from press reports and the many good books that have recently appeared, and from the growing number of first-hand accounts of those who witnessed, participated in, or suffered mistreatment, how to register it all so we can come to some conclusions – is a daunting challenge.

But it’s a challenge we all share. In a way, as the Report’s lead writer, I’m just trying to do what any one of us should be doing in the face of evidence that our elected officials presided over gross human rights violations: to piece together exactly what happened and who is responsible.

I have help, fortunately. As sections are posted, a group of expert Contributors will offer comments; you’ll see their annotations, which will include corrections, elaborations, questions, and suggestions, in-line in the text. We invite your comments as well; these will appear at the end of the chapters. The Report will be constantly updated to incorporate the best of these suggestions and the very latest information.

We begin at the beginning – the first days after the terrorist attacks of September 11, 2001. This chapter, "Origins," looks at two of the earliest actions of the Bush administration , one that literally opened a space for torture to happen and one that revealed the administration’s approach to legal barriers and restrictions.

Navigating The Torture Report

The Torture Reportis meant to be a one-of-a-kind, interactive resource that provides regularly updated, in-depth information and analysis on the Bush administration's torture program.

This Diary page will point you to the latest additions, changes, and improvements to the report, along with important report-related developments and news; you’ll land here whenever you visit the site. Follow the tab at the top or the chapter links at the left to reach the Report itself, and the floating menu to view expert Contributors’ annotations or to comment. The Document Search tab puts an archive of some 130,000 pages of formerly secret government documents at your disposal. Watch for additional features, including a library of first-person testimonials, in the weeks ahead.

More information about how to navigate this site and the Report can be found under the About this Project tab.
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