Archive for June, 2010

Activists’ Letter to the Justice Department on Guantánamo, Torture and Accountability

Two weeks ago, after 24 members of the campaigning group Witness Against Torture were cleared of charges of “unlawful entry with disorderly conduct,” stemming from demonstrations at the U.S. Capitol on January 21, 2010 (the date on which President Obama had promised the closure of Guantánamo), representatives of Witness Against Torture, other campaigning groups and the Center for Constitutional Rights met with Portia Roberson, the Director of the Office of Public Liaison at the Department of Justice, to discuss their grievances, and to provide suggestions for how the administration might regain the moral ground that it has steadily lost since the President made bold promises to close Guantánamo and bring torture to an end, which have subsequently been betrayed or compromised, in order to move away from “entrenching policies inimical to the Constitution and American values.”

I’ve cross-posted below a report on that meeting, plus a copy of the letter submitted by Witness Against Torture, the Bill of Rights Defense Committee, the Center for Constitutional Rights, Defending Dissent Foundation, No More Guantanámos, Torture Abolition and Survivors Support Coalition International and Voices for Creative Non-Violence, which provides an excellent round-up of the problems with the Obama administration’s failure to thoroughly repudiate its predecessor’s “War on Terror” policies, and to hold accountable those who committed crimes in the name of national security.

Activists meet with Justice Department official

On Tuesday, June 15th — a day after the acquittal of Witness Against Torture members in D.C. Superior Court of charges stemming from a January protest — a coalition of groups and individuals met with Portia Roberson, the head of the Office of Public Liaison at the Department of Justice. Our goal was to express our frustration with detention policies under the Obama administration and articulate steps we’d like to see the Justice Department take. The letter we submitted to DoJ, which outlines those steps, is attached [I’ve posted it below].

The meeting included Richard  Sroczynski, Matt Daloisio, Helen Schietinger, and Jeremy Varon from WAT; Sue Udry from Defending Dissent; Leili Kashani (Education and Outreach Director) and Bill Quigley (Legal Director) from the Center for Constitutional Rights; and Orlando Tizon from the Torture Abolition and Survivors Support Coalition International. We were honored to have, as late additions to the meeting, Syed Anwar Hashmi and Jeanne Theoharis. Syed is the father of Fahad Hashmi, a student from Queens, NY, who spent over 3 years in severe pre-trial solitary confinement at the MCC prison in New York City. He was accused of housing a suitcase with waterproof socks and rain ponchos that were delivered to a terrorist organization in Pakistan. Fahad continues to be subject to draconian “special administrative measures” (SAMs) that create conditions of detention amounting to torture [Note: Fahad Hashmi received a 15-year sentence for providing material support to a foreign terrorist organization on June 10]. Jeanne Theoharis, Fahad’s academic advisor at Brooklyn College, has done extensive work to publicize Fahad’s plight, rally support on his behalf, and expose the unjustifiable brutality of SAMs.

The meeting was both interesting and constructive. Ms. Roberson conveyed repeatedly that she appreciates our disappointment and anger even, and was very intent on learning more about our point of view. She was particularly impressed that we are not, for the most part, professional human rights advocates but instead “everyday people.” Her message was that she’d love to advocate, internal to DoJ, on our behalf. She would therefore like from us documentation supporting our position and demands. She also expressed a strong willingness to have a follow-up meeting.

We were both gracious toward Ms. Roberson and honest about our upset. We certainly appreciate the openness to dialogue. We will provide the materials she requested, and pursue additional meetings with her and others in DoJ. That said, actions speak far more loudly than words, and we insist on real changes in policy, not simply expressions of sympathy. We made all this clear, representing our position with both force and dignity.

The most moving portions of the meeting were hearing from Orlando, as a torture survivor, about the need for accountability, and from Mr. Hashmi about the nightmare his son and the entire family have endured. Ms. Roberson appeared personally touched by this.

The consensus in the group was that we should pursue things with DoJ as far as they will take us. Whatever her sympathies, Ms. Roberson does not set policy.  Others in the Justice Department have staked out deeply disturbing positions on various matters — from indefinite detention to the use of Military Commissions — knowing full well the objections of our community. It will be interesting to see if we will be granted a hearing with those at DoJ responsible for policy, and if any aspect of our demands will be met.

Many thanks, everyone.

Jeremy Varon, Witness Against Torture

Witness Against Torture’s Letter to the Department of Justice

Ms. Portia Roberson
Director of the Office of Public Liaison
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
June 10, 2010

Dear Director Roberson,

We appreciate the discussions with your office over the last months, as well as your agreeing to meet with us on June 15. Under the Obama administration, the Justice Department has appeared more open to dialogue than previously, and we value this change. In advance of the meeting, we would like to outline our concerns and the steps we urge the Department of Justice to take.

Who we are:

We represent some among the countless Americans sick at heart at U.S detention policies who are determined to see them change. We have worked at the grassroots level for the closure of the detention camp at Guantánamo, the release and resettlement of men detained in error, an end to U.S. torture, and accountability for those who designed and carried out torture policies. We have assiduously followed intricate policy and legal debates. We have learned the stories of men detained so as to plead their cases publicly. We have advocated for justice in the face of official hostility and public fear. And we have supported those in government who have sought to end extra-legal detention, immunity for state crimes, and the cruel and degrading treatment of others. Our guiding belief is that lawful and moral detention policies are essential both to U.S. security and to being a good and just society, worthy of its ideals.

Our Concerns:

Encouraged by his campaign, we shared the hope that the election of Barack Obama would mean restored respect for the rule of law and human rights. So also we envisioned a Justice Department no longer captive to the partisan agenda of the Executive. We were therefore heartened when, on day one of his administration, President Obama signed executive orders mandating the closure of the detention facility at Guantánamo in a year and banning the torture practices labeled “enhanced interrogation techniques.” These measures, along with a rhetoric promising transparency and accountability, augured well for a decisive break with Bush-era policies.

Yet, in the last eighteen months, our hope for change has been almost entirely drained. The achievement of what should be modest goals, such as the closure of Guantánamo, now lies in grave doubt. The Obama administration and the Holder Justice Department have sustained many of the most objectionable of the Bush policies. The administration has consistently acted to accommodate the fear mongering and belligerence of the rightwing, rather than to fulfill its mandate to restore fairness and justice. Our country now stands at a crossroads. Its current path risks entrenching policies inimical to the Constitution and American values. We are reaching out to you in hope that it is not too late to turn in the direction President Obama first promised.

Below we outline areas of our greatest concern, highlighting how the Obama
administration and DoJ have worked against their stated intentions and proper charge.

Guantánamo

The detention facility remains open long after the deadline for its closure. Men cleared for release continue to languish there, as do some who have had federal judges rule that there are no valid grounds for their detention. This is unacceptable. If Guantánamo was, on day one, a foreign policy liability and a stain on the rule of law, it remains so eighteen months later.

We appreciate the difficulties in closing the camp. The Republican leadership and rightwing media consistently distort key facts and stoke public fear, making rational discussion about the camp’s fate difficult. Still, this is no excuse for the failure to close it. As habeas petitioners continue to win their hearings, as a fuller picture of the detention of innocent men emerges, and as evidence of the role of Guantánamo, Abu Ghraib, and other ills in radicalizing America’s enemies mount, the rationale for closing the prison only grows stronger.

Moreover, the Obama administration and the Department themselves have had a hand in the current morass. We make note here of the Department’s tragic decision to challenge [Judge] Ricardo Urbina’s ruling in October 2008 that 17 Uighurs at Guantánamo be released immediately into the United States. Had the DoJ let that ruling stand, allowing the Uighurs to peacefully settle here, foreign governments may have been more willing to take in men from Guantánamo. Further, their resettlement would have pre-empted the baseless argument sweeping through Congress that bringing men from Guantánamo into the United States in all cases represents an intolerable security threat.

In addition, the administration continues to erect obstacles to forestall the repatriation even of men allied to governments who have done everything the United States has asked to guarantee that they pose no security risk. Documenting such delays with respect to his Kuwaiti client [Fayiz al-Kandari], Lt. Col. Barry Wingard recently concluded that “the US’s ever-increasing demands have now entered the realm of the absurd.”

We should add that the DoJ’s invocation of qualified immunity, political question doctrines and state secrets privilege to block lawsuits concerning extraordinary rendition and torture (as in Arar v. Ashcroft, et. al.) has not only denied the plaintiffs a chance at restitution, but prevented an accounting of how some of those detained — far from “evildoers” — are themselves victims of American incompetence and cruelty.

Finally, the administration has never publicly refuted the Pentagon’s grossly exaggerated tally of detainees “returning to the battlefield” upon release from Guantánamo. As Professor Mark Denbeaux has shown [PDF], the Pentagon’s numbers are based in flawed methods, such as counting speech acts critical of US policy as evidence of “recidivism.” Quoting these baseless numbers, pundits and politicians perpetuate the myth of a “revolving door” from Guantánamo to terrorism. In general, the Obama administration has let stand the big lie regarding Guantánamo: that it always housed, and continues to house, the “worst of the worst.” With the entire prison population stigmatized this way, the principled resolution of the fate of the men imprisoned there remains remote.

Bagram and Habeas Corpus

The problem with Guantánamo is not the physical existence of the prison, but the effort to contrive areas outside the boundaries of U.S. and international law. To maintain “legal black holes” elsewhere perpetuates the Guantánamo problem. The prison at Bagram Air Force Base in Afghanistan is one example. We have learned, by virtue of a FOIA request, the names of men detained at Bagram. However we do not know their nationalities, the circumstances of their capture, or what evidence, if any, warrants their detention (leaked [Maj. Gen. Doug] Stone report indicates 400 of 600 should never have been detained and should be immediately released). Nor do Bagram prisoners have proper legal counsel. It may be that many of those prisoners, like those at Guantánamo, were detained on flimsy bases. But without more information about them, as well as a system for assessing the validity of their detention, we will never know. Further, Bagram has been the subject of allegations of gross physical abuse — including the fatal beating of captives — beyond what is alleged to have taken place at Guantánamo.

The recent ruling holding that men captured away from the Afghan battlefield but brought to Bagram have no habeas rights is distressing; we are appalled that the Department of Justice would even contest the lower court judgment. The new ruling substantially undoes the victory for the rule of law that the 2008 Boumediene decision represents, reviving Bush-era conceits of executive power. We understand that prisoners captured in war have not historically enjoyed habeas rights. But all such prisoners are entitled, according to the Geneva Conventions, to an expeditious and competent hearing to determine the validity of their detention. This is a right that the Bush administration systematically denied. The Combatant Status Review Tribunals fell far below minimum standards of due process, and were rightly rejected by the Supreme Court in favor of habeas hearings. The spirit of Boumediene is the proposition that “war on terror” suspects should have a legitimate chance to argue the wrongfulness of their detention, and that this opportunity should exist for all suspects, regardless of where they are imprisoned. Given the frequent imprisonment of innocent men, nothing inspires confidence that one could dispense with the habeas process.

The Obama administration has taken the dangerous position that foreign nationals can be captured nearly anywhere in the world, brought into an active war zone, and denied the ability to plead their innocence. This position validates the reckless view that the United States is less safe if it takes prudent steps to ensure that it does not detain innocent men.

Indefinite Detention

As outlined in President Obama’s May 2009 address, the administration plans to detain some Guantánamo prisoners indefinitely, without charge or trial. This measure would apply to those against whom insufficient evidence exists for prosecution or from whom “evidence” was extracted through torture. The administration thus proposes a system of the preemptive incarceration based on the alleged probability of future crime, and not verifiable past conduct. This is as a frightful plan, which grants the U.S. executive near-tyrannical powers. Such a scheme must be rejected out of hand given its blatant inconsistency with the constitutional requirement of due process.

Accountability

Despite its promise of a new era of accountability and respect for the rule of law, the Obama administration has repeatedly acted to ensure immunity for nearly all those under the Bush administration who committed and authorized torture. In simplest terms, the administration has failed to enforce the law.

The President has declared that waterboarding is torture, and has suggested that other “enhanced interrogation” techniques are as well. We are bound by the Convention Against Torture to investigate and prosecute those who ordered or committed such acts. The DoJ, however, has declined any comprehensive criminal inquiry, limiting its investigation to those who allegedly committed acts beyond what “enhanced interrogation” protocols authorized. In this decision, it has endorsed the Bush administration claim that the law is whatever the administration says it is.

Even if one accepts the limited culpability of those who acted in accordance with what they thought was lawful, one might expect meaningful sanction for those who distorted the law. We therefore applauded the judgment of the Office of Professional Responsibility that John Yoo and Jay Bybee not only adopted tenuous legal opinions but also engaged in lawyering that fell well outside established professional norms. Its findings were to trigger potentially severe professional sanctions. Yet DoJ’s David Margolis, on spurious grounds, over-rode OPRs findings, issuing a tame reprimand of Yoo and Bybee that largely vindicates them. We thus find ourselves in the shameful circumstance in which torture was committed but no one is held accountable.

Some have suggested that to conduct a comprehensive inquiry into torture would be to politicize already sensitive issues. We disagree. The rule of law should be blind to politics. To decline mandatory prosecution is itself to politicize the law. President Obama has defended the grant of immunity as an effort to have the country “move forward” rather than “look back.” But the best — and perhaps only — way to prevent future torture is to hold accountable those guilty of torture in the past.

Recommended Steps

The above reflections all speak to our core demands: that Guantánamo be closed immediately, with its inmates released or charged and tried in civilian courts; that there be no system of indefinite detention anywhere; that habeas rights be granted to all detainees held by the US; and that the Justice Department conduct a comprehensive investigation of alleged torture under the Bush administration. Short of these broad measures, we have articulated smaller steps the Justice Department, in combination with other offices, should take.

Grant family visits: The United States should immediately grant the families of all detainees the right to visit them. Family visits are commonly granted to prisoners of all kinds, and those at Guantánamo and Bagram should be no exception.

Human rights assessment: The history of abuses at US detention facilities has been extensive. The United States should therefore consent to a comprehensive, public assessment by a credible human rights organization to verify that conditions at the prison are consistent with the Geneva Conventions. Such an inquiry should feature access to the detainees and look seriously at such controversial measures as extended solitary confinement and the force-feeding of those refusing food. We likewise propose such an assessment of Bagram prison.

Expand investigation and prosecution: The Justice Department should expand the investigative mandate of prosecutor John Durham to include former senior officials possibly complicit in authorizing torture policies.

Investigate obstruction of justice: Colonel Lawrence B. Wilkerson, Chief of Staff to U.S. Secretary of State Colin Powell, recently signed a declaration for a court case indicating firsthand knowledge that in August 2002 Vice-President Cheney and other senior administration officials knew that many of those at Guantánamo were detained in error. However, according to Col. Wilkerson, the Bush administration did not want to “look bad” and so suppressed knowledge of this fact. Wilkerson’s statement should be the basis for a DoJ obstruction of justice inquiry focusing on the possible suppression of evidence of the innocence of captives at Guantánamo.

Investigate human experimentation: The Justice Department, especially in light of the newly released report by Physicians for Human Rights, should investigate the authorization and commission of potentially illegal human experimentation in the application and monitoring of “enhanced interrogations.”

Address “recidivism” claims: DoJ and other relevant agencies should issue a credible report assessing the frequency of men released from Guantánamo who then engage in criminal activities against the United States. Such a report should be based in sound, transparent methods, not based on flawed or self-interest reports, reviewed by extra-governmental bodies, and include a detailed work-up of all known or suspected cases of former detainees’ involvement in terrorism.

We thank you for your time and consideration, and look forward to a productive meeting.

Sincerely,

Witness Against Torture
Bill of Rights Defense Committee
Center for Constitutional Rights
Defending Dissent Foundation
No More Guantanámos
Torture Abolition and Survivors Support Coalition International
Voices for Creative Non-Violence

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Andy Worthington Discusses Obama’s Guantánamo Failures on Antiwar Radio

For our 14th interview — and our first since Antiwar Radio upgraded to a station with commercial breaks, making for a lean 20-minute show (available as an MP3 here) — Scott Horton and I began by discussing my recent article, Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners, which allowed me to run through the story of how the prisoners at Guantánamo secured habeas corpus rights, and how, since October 2008, there have been 50 rulings in the District Court in Washington D.C., and 36 of these have been won by the prisoners, generally through rulings in which the judges have exposed the flimsiness of the government’s evidence, revealing how much if it relies on dubious statements made by the prisoners themselves, or by their fellow prisoners, in circumstances involving torture, coercion or bribery. As I never tire of pointing out, that’s a 72 percent success rate, and it should be trumpeted far more prominently in the mainstream US media than it has been.

I also discussed my increasing obsession with the fundamental failure of the detention policies inherited by Obama from the Bush administration, which have led to the majority of the prisoners who have lost their habeas petitions being consigned to apparently endless detention, on a purportedly legal basis, not because they had any involvement with terrorism, but because they had been fighting with the Taliban against the Northern Alliance in Afghanistan (or otherwise serving soldiers in Afghanistan, as a cook or a medic, for example) and should, therefore, have been held — if at all — as prisoners of war protected by the Geneva Conventions.

Scott and I also discussed the case of Mohammed Hassan Odaini, which I have covered in three articles recently — Why is a Yemeni Student in Guantánamo, Cleared on Three Occasions, Still Imprisoned?, Obama Thinks About Releasing Innocent Yemenis from Guantánamo, and Obama’s Moral Bankruptcy Regarding Torture. I recommend these articles for those who want to know more about a prime example of President Obama’s cowardice when it comes to releasing cleared prisoners from Guantánamo, because Odaini was cleared by a Bush-era military review board, by Obama’s Guantánamo Review Task Force, and by a US judge, but is still held, even though, on Saturday, the administration conceded, with some reluctance, that he will soon be released.

It was a pleasure to talk to Scott, as ever — and I was honored to be referred to as “the heroic Andy Worthington” — and I also look forward to talking again soon.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Obama’s Moral Bankruptcy Regarding Torture

Saturday was the International Day in Support of Victims of Torture, established twelve years ago to mark the day, in 1987, when the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment came into force, but you wouldn’t have found out about it through the mainstream US media.

No editorials or news broadcasts reminded Americans that “No exceptional circumstances whatsoever, 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,” and that anyone responsible for authorizing torture must be prosecuted, and no one called for the prosecution of George W. Bush, Dick Cheney and Donald Rumsfeld or their supportive colleagues and co-conspirators, including, for example, John Yoo, Jay S. Bybee and Stephen Bradbury, the authors of the Office of Legal Counsel’s “torture memos,” or other key figures in Cheney’s “War Council” that drove the policies: David Addington, Cheney’s former Chief of Staff, Alberto Gonzales, the former Attorney general, and William J. Haynes II, the Pentagon’s former Chief Counsel.

Instead, two mainstream newspaper articles revealed the extent to which President Obama has, over the last 17 months, conspired with senior officials and with Congress to maintain the bitter fruits of the Bush administration’s torture program — and its closely related themes of arbitrary detention and hyperbole about the perceived threat of terrorism.

In the first of these two bleak stories, “US to repatriate Guantánamo detainee to Yemen after judge orders him to be released,” anonymous administration officials told the Washington Post that the President had generously decided to release a Yemeni prisoner in Guantánamo, Mohammed Hassan Odaini, whose release was ordered last month by a judge in the District Court in Washington D.C.

As I explained in an article following the judge’s May 26 ruling, it had been publicly known since November 2007 that the government had conceded in June 2005 that Odaini, a student, had been seized by mistake after staying the night with friends in a university guest house in Faisalabad, Pakistan on the night that the house was raided by Pakistani and US operatives, and that he had been officially approved for release on June 26, 2006 (ironically, on the International Day in Support of Victims of Torture).

Nevertheless, the Justice Department refused to abandon the case against him, and took its feeble allegations all the way to the District Court, where they were savagely dismissed by Judge Henry H. Kennedy Jr. When the judge’s unclassified opinion was subsequently released, an even grimmer truth emerged: that shortly after Odaini’s arrival at Guantánamo in June 2002, an interrogator recommended his repatriation (after he had been exploited for information about his fellow prisoners), and that, in April 2004, “an employee of the Criminal Investigative Task Force (‘CITF’) of the Department of Defense reviewed five interrogations of Odaini and wrote that ‘[t]here is no information that indicates [he] has clear ties to mid or high level Taliban or that he is a member of al-Qaeda.’”

Odaini was not subjected to specific torture techniques, but there are many people — myself included — who are happy to point out to the Obama administration that subjecting an innocent man to eight years of essentially arbitrary detention in an experimental prison camp devoted to the coercive interrogations of prisoners who were deliberately excluded from the protections of the Geneva Conventions is itself a form of torture, especially as, unlike the worst convicted criminals on the US mainland, no Guantánamo prisoner has ever been allowed a family visit, and many have never even spoken to their families by phone.

Moreover, the fact that the administration proceeded with his habeas case, despite knowing that he was innocent, and then refused to release him as soon as the judge delivered his ruling, confirms that, when it comes to lawlessness and cruelty, the Obama administration is closer in spirit to the Bush administration than it cares to admit.

On Saturday, via its anonymous spokesmen, the administration confirmed how far it has fallen from all notions of decency. The officials explained that the moratorium on any releases to Yemen that was issued by President Obama in January, in response to cynical hysteria whipped up in the wake of the failed plane bomb plot involving a Nigerian who had reportedly trained in Yemen, “remains in place,” but, as one of the officials stated:

The general suspension is still intact, but this is a court-ordered release. People were comfortable with this … because of the guy’s background, his family and where he comes from in Yemen.

In other words, a mouthpiece of the administration told a major US newspaper that Odaini, a patently innocent man whose release was ordered by a US judge, and whose ongoing detention was cynically sought by the Obama administration, was only being released because government officials were happy about his family background (his father, it transpires, is a retired security officer).

I shouldn’t really need to explain to the government that it’s unconstitutional to detain an innocent man, even if his father happened to be Osama bin Laden rather than a security officer, nor to point out how it would appear if this vetting procedure were to be applied to the criminal justice system in general, but in Obama’s world it is apparently necessary to point out these basic facts.

The second story that arrived in time to cast a mocking light on the International Day in Support of Victims of Torture — “Closing Guantánamo Fades as a Priority” — was published in the New York Times. Since President Obama failed to close Guantánamo by his self-imposed deadline of January 22 this year, the administration has failed to set a new deadline — and for a depressing reason, as Sen. Carl Levin explained to the Times.

“There is a lot of inertia” against closing the prison, “and the administration is not putting a lot of energy behind their position that I can see,” Sen. Levin said, adding that “the odds are that it will still be open” by the next presidential inauguration in 2013.

Sen. Levin had no doubt that this failure had come about because of a lack of political will on the part of the administration, which contrasts sharply with the rhetoric of Barack Obama in August 2007, when he was still a Senator. On that occasion, he spoke compellingly about how, “In the dark halls of Abu Ghraib and the detention cells of Guantánamo, we have compromised our most precious values. What could have been a call to a generation has become an excuse for unchecked presidential power.” However, since coming to power, as Sen. Levin explained, the administration has been “unwilling to make a serious effort to exert its influence.”

With a sharp eye for how principled rhetoric has not been followed up with any attempt whatsoever to persuade Congress of the importance of closing Guantánamo, Sen. Levin contrasted the administration’s “muted response to legislative hurdles to closing Guantánamo with ‘very vocal’ threats to veto financing for a fighter jet engine it opposes,” and added that last year the administration “stood aside as lawmakers restricted the transfer of detainees into the United States except for prosecution,” and also responded with silence just a month ago, when the House and Senate Armed Services Committees voted to block money for renovating a prison in Illinois to take the remaining prisoners in Guantánamo who have not been cleared for release.

“They are not really putting their shoulder to the wheel on this issue,” Sen. Levin concluded, adding, “It’s pretty dormant in terms of their public positions.”

“Dormant” is a good word, but something like “extinct” may be more appropriate, if, as Sen. Levin asserts, Guantánamo will still be open in January 2013. If that occurs, Guantánamo will have been open for 11 years, which doesn’t even bear thinking about. This is especially true because, as it stands now, nearly eight and half years after Guantánamo opened, the Obama administration’s refusal to take leadership on the issue, to drop its unacceptable moratorium on releasing Yemenis cleared by its own Task Force (and in some cases, like Mohammed Hassan Odaini, by the courts), and to abandon an unprincipled policy of continuing to hold men indefinitely without charge or trial demonstrates that senior officials, including the President, genuinely have no interest in bringing to an end a regime founded on torture and arbitrary detention. In most respects, their actions — or their inactivity — represent a ringing endorsement of their predecessors’ vile policies.

The “enhanced interrogation techniques” of the Bush years may have come to an end, but anyone doubting the baleful effects of long-term detention without charge or trial should recall what Christophe Girod of the International Committee of the Red Cross told the New York Times over six year and a half years ago: “The open-endedness of the situation and its impact on the mental health of the population has become a major problem.”

That was in October 2003, and I dread to think what the mental state of some of those prisoners must be by now. The very thought that, two and half years from now, some of these men might still be held because the Obama administration doesn’t care enough to do anything about it cannot be excused for reasons of political expediency. Instead, it confirms that, in failing to bring to an end key elements of the Bush administration’s program of torture and arbitrary detention, the Obama administration has lost its principles.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on Aletho News, Eurasia Review, New Left Project, Another World is Possible, United Progressives and The World Can’t Wait.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. Also see the archive of articles about Guantánamo and habeas corpus here. For articles about US torture, see the links following the article here, here and here, and the archive of articles here. For chronological lists of all my articles, with links, see here.

Guantánamo as an “Intelligence Squeezing” Center: Pakistan Media Interviews Col. Morris Davis

Note: Please see the postscript below by Col. Davis.

Today, the Daily Times in Pakistan has published an interview with Colonel Morris Davis, conducted by political analyst Ali Kamran Chishti. The interview is of interest for Col. Davis’ explanation of how Guantánamo operated as an illegal “intelligence squeezing” center, and for his description of the prison as “an embarrassment to the United States.” For Pakistani readers, and those interested in Pakistan’s relationship to the US, the interview is also fascinating for Col. Davis’ assertion that the ISI (the Inter-Services Intelligence directorate, Pakistan’s largest, and most controversial intelligence agency) was involved in negotiations regarding proposed trials for prisoners, but that the Pakistani government was not informed about these discussions.

It is also of interest because of Col. Davis’ thoughts on US policy in Afghanistan and Pakistan, and on the use of drones, and also because he reiterates that he resigned as the chief prosecutor of the Military Commission trial system at Guantánamo in October 2007, “because I did not believe we would provide full, fair and open trial for the detainees we intended to prosecute.”

Col. Davis has previously explained that his resignation was triggered when he was placed in a chain of command under Pentagon chief counsel William J. Haynes II, who was implicated in the development of torture as part of Dick Cheney’s “War Council,” and I was impressed by how, in the interview, he described the importance of observing the rule of law:

There were too many people trying to manipulate the trials and a few people trying to pressure me to use evidence that was unreliable because it was the produce of undue coercion. I couldn’t in good conscience be a part of that. I was just one of the many who had the common sense and common decency to recognize that there’s a line between right and wrong, and the courage to stand up for what’s right.

I was also pleased to note that Col. Davis followed up on this statement by hinting that the actions of his superiors may have constituted illegal actions, and that they may one day face prosecution: “I hope the world will come to see that despite a few bad people in the US government who made bad decisions — decisions that may even be criminal — there were many of us who believed in the sanctity of the rule of law.”

I must point out, however, that I don’t agree with all of Col. Davis’ assessments. Even if “The facilities [at Guantánamo] are clean, they are safe, they are not over-crowded, the food is good and the medical care is better than I got when I was in the military,” as Col. Davis asserts, which still seems to be open to dispute, this is not adequate compensation for being held in a uniquely open-ended form of arbitrary detention that is ruinous for the prisoners’ mental health.

Moreover, on his position regarding the three questionable suicides at Guantánamo on June 9, 2006, I also have doubts. Col. Davis states that the men in question were insignificant, and that “None of them had been among the detainees who instigated trouble with the guard force.” While the former assertion is correct, in terms of how they were perceived as terrorist suspects, the second is not, because all three men had been profoundly troubling to the authorities, as long-term hunger strikers who persistently stood up for the rights of their fellow prisoners.

In addition, Col. Davis states that, because of the timing — with an important Supreme Court ruling imminent (Hamdan v. Rumsfeld), as well as the scheduled arrival of 14 “high-value detainees” from secret CIA prisons — “the personnel at Gitmo had no reason to arbitrarily murder three nobodies; instead they had every reason to be on their best behavior.”

I’m uncertain about this timing, in that I’m not sure that the decision to transfer 14 “high-value detainees” into Guantánamo (who arrived in early September 2006) was taken until after the government lost Hamdan v. Rumsfeld on June 29, 2006, when the Supreme Court found that the administration did not have the authority to establish the Military Commission trial system at Guantánamo without Congressional approval, because it did not comply with the Uniform Code of Military Justice and the Geneva Conventions, and the government then panicked about its secret CIA detention program.

In any case, another reason for doubting Col. Morris’ assertion about the behavior of the military personnel at Guantánamo in June 2006 is that, if the men were killed on June 9, 2006, it was as a result of the activities of agents outside the military’s command — the CIA, or perhaps the Joint Special Operation Command (JSOC), the shadowy organization that was recently implicated in reports of torture in a secret prison at Bagram, Afghanistan — and the military only became involved because a cover-up was required.

Nevertheless, it is always good to hear from Col. Davis, whose principled stand against the Bush administration’s attempts to convict Guantánamo prisoners in show trials using information derived from torture ensures that he, and five other prosecutors who resigned (including Lt. Col. Darrel Vandeveld, whose resignation in September 2008 also had a major impact), will always be remembered as principled public servants who chose to uphold their loyalty to the Constitution over the unprincipled demands of a President who was more interested in the exercise of unfettered executive power.

Gitmo detainees were exploited for intelligence
The Daily Times, Pakistan, June 28, 2010

Pakistan-based political analyst Ali Kamran Chishti recently interviewed former Guantánamo Bay prison chief prosecutor Colonel Morris Davis. The following is the transcript of the talk.

Ali Kamran Chishti: Tell us about yourself.

Colonel Morris Davis: I am 51 and grew up in Western Carolina in the US and attended college and law school there. I joined the US Air Force in 1983 and served there for 25 years as an attorney. I was Chief Prosecutor for the Military Commissions at Guantánamo Bay, Cuba from September 2005 to October 2007.

Ali Kamran Chishti: How many prosecutors worked at Gitmo?

Colonel Morris Davis: I was head of a multi-agency Prosecution Task Force (PTF) that fluctuated in size over time. When I resigned in October 2007 there were about 110 people detailed to the PTF on a full or part-time basis including attorneys, paralegals, intelligence analysts, law enforcement agents and support personnel from the Department of Defense, Department of Justice, CIA, FBI and other federal agencies.

Ali Kamran Chishti: So what did you do as chief prosecutor and did you have direct access to detainees?

Colonel Morris Davis: Probably the best analogy is to the role of a head coach of a sports team. I assigned team members, monitored their progress, provided guidance on their preparations, ensured they had the resources they needed and made sure everyone understood the rules and followed them. The law enforcement members of PTF (CIA, FBI etc.) had more direct access to the detainees. The PTF did have access to the detainees, which was necessary in order to prepare cases for trial, and we interviewed many of them in detail. I interviewed directly with two detainees.

Ali Kamran Chishti: Great! So you had the prosecution team at Gitmo but did you have a defense team too?

Colonel Morris Davis: I believe an ample number of very capable and qualified defense attorneys, both military and civilians, were and are committed to the defense effort. And I believe they did a fine job of keeping the military commission process tied up in litigation in the federal courts for years, ending up with the Supreme Court’s decision in Hamdan v Rumsfeld in June 2006 that ended the process created by President George Bush, [which was] created by an executive order.

Ali Kamran Chishti: Okay! Now let’s talk about the rights which the Gitmo detainees never had. Apparently, President Bush did not give detainees protection under the Geneva Conventions despite the Supreme Court’s ruling in Hamdan v Rumsfeld, which actually calls for a “minimal protection” to detainees (Common Article 3 of the Geneva Conventions). Did people from “inside” disagree [with] that?

Colonel Morris Davis: Yes, people disagreed with the Geneva Conventions. If you haven’t already, you might want to read Karen Greenberg’s book, The Least Worst Place, which chronicles the first 100 days that Gitmo was in operation in early 2002. The military leadership, in absence of any other rules, fell back on their Geneva Convention training and the place operated in a pretty humane manner at the outset. All of the Judge Advocate Generals, the senior uniformed attorneys of each of the military services, argued for application of the Geneva Conventions. Apparently, it was the civilians like David Addington, John Yoo, Alberto Gonzales and Jim Haynes — a group referred to as “the big brains” — who disagreed and had more clout. Secretary of Defense Rumsfeld was dissatisfied with the amount of information coming from the detainees and pressed to ratchet up the coercion to squeeze more intelligence from the detainees, and the rest is history.

Ali Kamran Chishti: What were the legal standards used to put people in Guantánamo? The public has the impression that many innocent people were in there on the basis of rumors or malicious individuals. If no information was gained from them after a year or so, why were they kept for so long?

Colonel Morris Davis: I don’t know the precise process that resulted in most of the detainees going to Gitmo because that pre-dated my involvement in the military commissions. The only detainees sent to Gitmo during my tenure were 15 high value detainees that were transferred from the CIA black sites to DoD detention at Gitmo. Those were approved by President Bush. The customary laws of war permit detention of enemy combatants for the duration of hostilities. That authority is not dependent on whether they do or do not provide information. It is dependent on whether they pose a current or future threat to us or our allies.

Ali Kamran Chishti: Sir, do you realize [that out of] all those years of the establishment of Gitmo only three prisoners (David Hicks, Salim Hamdan and Ali Al-Bahlul) were convicted while 420 out of 775 were released without a charge? Why? [Note: 532 prisoners were released under President Bush (including Hicks and Hamdan) and Obama has released another 59].

Colonel Morris Davis: Basically Gitmo was more of an “intelligence squeezing” center than a Jail.

Ali Kamran Chishti: Why were some people put in Guantánamo, others sent to secret detention sites in Europe, and others to Syria, Egypt etc. for questioning? And some remained in Bagram, Afghanistan. Are these different categories of prisoners?

Colonel Morris Davis: Those sent to Gitmo were those believed to have intelligence value. People were not sent there to face prosecution, they were sent there to be exploited for intelligence.

Ali Kamran Chishti: Hmm … so who was in charge of the interrogation? Or “Intelligence Squeezing” Ops?

Colonel Morris Davis: There is no simple answer. The Department of Defense operated the facility and had primary responsibility for the interrogations through an organization called the Joint Intelligence Group (JIG). That is not to say the CIA or FBI or a foreign intelligence or local enforcement agency couldn’t speak with detainees but the vast majority of the work was done by personnel from the Defense Department. On the other hand, at the CIA black-sites where the high-value detainees were held before they were sent to Gitmo, the CIA had primary responsibility and conducted most of the negotiations.

Ali Kamran Chishti: Hang on, foreign agencies were allowed access to the detainees?

Colonel Morris Davis: Yes. I know the Canadians were allowed to speak to Omar Khadr [as well as] various [other] intelligence agencies around the world that had access.

Ali Kamran Chishti: Various intelligence agencies like the ISI?

Colonel Morris Davis: Yes. In fact I had one face-to-face meeting with a very senior official of the ISI (name withheld). We initially met to discuss the extent to which ISI would assist us, as we got ready for the military commission trials.

Ali Kamran Chishti: Military Commissions? Did the ISI agree to this?

Colonel Morris Davis: Yes. We needed access to people, things and places and ISI could help facilitate the process. The official I met with was very cordial and was more than willing to arrange ISI cooperation. In return they were interested in access to one detainee of Pakistani origin at Gitmo (name withheld). I was supposed to travel to Pakistan for a follow-up meeting but our trip was delayed because of unrest in Pakistan. I resigned a few months later, so I never made the trip. I don’t know to what extent ISI is cooperating with the prosecution now.

Ali Kamran Chishti: So are you trying to say — and let me get it absolutely spot-on on this one: Yes or no. What you said is that the ISI or Pakistani military agreed to help US try Pakistani nationals at military tribunals without the protection of the Geneva Conventions at Guantánamo Bay, Cuba?

Colonel Morris Davis: Yes, absolutely.

Ali Kamran Chishti: And there was no one from the Pakistani civilian government [who] ever checked up on the Pakistani detainees state of affairs? Or wanted consular access?

Colonel Morris Davis: Negative. No contact whatsoever.

Ali Kamran Chishti: On the violence part: Gitmo has one of the worst human rights record and as you say it was more of an “intelligence exploitation” center than a jail. How [was] intelligence squeezed out?

Colonel Morris Davis: It was my understanding that Secretary Rumsfeld rolled back his earlier authorization for enhanced techniques in 2004 after the abuses at Abu Ghraib went public. I never witnessed torture at Gitmo although aggressive techniques were used prior to the time I became chief prosecutor in September 2005. I know there were some instances where interrogators went too far and crossed the line. [Mohammed al-]Qahtani and [Mohamedou Ould] Slahi are two examples where the techniques used by the interrogators went too far. Those instances were not anywhere near as common as most people believe. In my estimation, more than 90 percent of the information developed at Gitmo came from interrogators taking the time to develop relationships with detainees, often over burgers, pizza and sub sandwiches rather than using undue pressure to make them talk. In the few cases where interrogators went too far, I instructed the PTF members that we would not use anything the detainees said and, instead, we would work to develop cases independent of the coerced statements at trials, then how the statements were obtained is irrelevant in the military commissions. Also contrary to popular folklore, no one was ever waterboarded at Gitmo. There were three detainees that were waterboarded and that happened while they were in CIA custody long before they were transferred to Gitmo.

Ali Kamran Chishti: How do you define torture? Does it include sleep deprivation? Or other psychological forms of pressure that are not used in normal prisons? Who ordered the torture to start and stop?

Colonel Morris Davis: I have never tried to define torture. Whether a detainee was tortured focuses on the culpability of those interrogating the detainee and whether they should be prosecuted for their conduct, which is not a military commission matter. My job as chief prosecutor for the military commissions was to prosecute enemy combatants we believe committed war crimes. My sole focus was on whether the information obtained from the detainee was reliable regardless of whether the treatment reached a level where it satisfied the elements of torture under domestic or international law. As for the latter part of the question of sanctioning torture: both former president Bush and former vice president Cheney stood by their decision, arguing the ends justified the means.

Ali Kamran Chishti: Now there were reports of mass suicides by detainees because of the treatment by interrogators. Your views?

Colonel Morris Davis: You’ve linked two facts — there were suicides and there was some abusive treatment by interrogators — to form a conclusion that I believe is incorrect. I was down at Gitmo on June 9, 2006 when the triple suicides occurred. Admiral Harry Harris, the commander of the detainees operations at the time, was vilified for calling the suicides an act of “asymmetrical warfare”. I personally believe Admiral Harris was right to call it what it was. The story that this was a triple homicide followed by an elaborate conspiracy to conceal it makes for good drama but I don’t believe the scenario was accurate. When Donald Rumsfeld referred to the detainees in general as the “worst of the worst”, the three detainees that killed themselves did not fit the description. They were so insignificant among the detainee population that when I saw the names I had no idea who they were. At least one of the three had already been cleared for transfer back to his home country since he didn’t pose a threat to the US or our allies. None of them had been among the detainees who instigated trouble with the guard force. These were human beings, so I don’t mean to disparage them in any way, but among the detainee population as a whole they were nobodies. Recall, too, that at that point in time in June 2006 we were days away from the Supreme Court announcing its decision in the Hamdan case and President Bush was preparing to announce that he was authorizing the transfer of the high-value detainees from CIA custody at the black sites to DoD detention at Gitmo. In short, the personnel at Gitmo had no reason to arbitrarily murder three nobodies; instead they had every reason to be on their best behavior, given the historic announcements that were coming from the most senior levels of the US government in the coming days.

Ali Kamran Chishti: Do you think Gitmo was an embarrassment to the United States?

Colonel Morris Davis: It was and clearly is an embarrassment to the United States. As to whether it should have been closed, I suppose that depends on what the alternative would have been. If it just meant moving all or most of the detainees to another facility – Bagram, for instance — all you’ve done is create another Gitmo in a new location. I have personally seen a great many jails and prisons in the United States and abroad, and the facilities at Gitmo are far superior. I believe Americans who are currently in prison would gladly trade places if they saw the conditions at Gitmo. The facilities are clean, they are safe, they are not over-crowded, the food is good and the medical care is better than I got when I was in the military. Unfortunately, just the word Guantánamo has become such a stigma that I don’t know if it’s possible to rehabilitate its image, which alone may warrant its closure.

Ali Kamran Chishti: Why did you resign from the post of chief prosecutor of Guantánamo Bay?

Colonel Morris Davis: I resigned because I did not believe we would provide full, fair and open trial for the detainees we intended to prosecute. There were too many people trying to manipulate the trials and a few people trying to pressure me to use evidence that was unreliable because it was the produce of undue coercion. I couldn’t in good conscience be a part of that. I was just one of the many who had the common sense and common decency to recognize that there’s a line between right and wrong, and the courage to stand up for what’s right. I hope the world will come to see that despite a few bad people in the US government who made bad decisions — decisions that may even be criminal — there were many of us who believed in the sanctity of the rule of law. A year later, in October 2008, I retired from the Air Force. For my final year I served as Director of Air Force Judiciary.

Ali Kamran Chishti: Why did the Obama administration decide to sack you from Congress?

Colonel Morris Davis: I think the opinion pieces I published last November in the Wall Street Journal and the Washington Post, [which were] critical of the Obama administration’s handing of the Gitmo detainees issue, aggravated some in the Obama administration, but I do not believe they instigated my termination at the Library of Congress. The person I was working for had been at the Library for more than 40 years and in my view he is incapable of separating his personal beliefs from his professional duties. He was offended that I had the audacity to publicly express my opinion about Gitmo based on my former role. My boss didn’t like it, although the Library of Congress has a regulation that at least in print purports to encourage employees to write and speak on topics outside the scope of their official duties. I relied on the rules and my boss fired me. Interestingly, I alienated some in the Bush administration when I resigned as chief prosecutor and spoke out against torture and political meddling in the trials. I then alienated some in the Obama administration when I criticized their waffling on what to do with the Gitmo detainees. Having offended both the ends of the political spectrum, I’ve hit a spot where I’m now [un]employable.

Ali Kamran Chishti: How do you view American foreign policy in general and specifically Afghanistan-Pakistan policy?

Colonel Morris Davis: I give President Obama credit for his efforts to engage with other countries and I’m particularly impressed by Secretary of State Clinton. She has done much better than I ever expected. I never understood the Bush administration’s view that talking with others is a sign of weakness. I thought the Bush policy was arrogant and short-sighted. While the current administration has done a good job of reviving international dialogue, I’m waiting to see it followed up with some concrete actions that show we are meaningfully engaged in the community of nations. I’m skeptical of our Af-Pak strategy. Too often we tend to view others through our own lens and often we’re shocked when they don’t behave as we would. We thought the Iraqis would see us as liberators and they’d embrace democracy and become a Middle East success story. We were shocked that when given a chance for democratic elections the Palestinians elected Hamas. I’m afraid we bring those same biases to our Af-Pak strategy. Nation building in that region has been a largely futile effort for generations. I’m not sure why we think we’ll prevail where so many others failed. I also found it ironic that the far right, who were so critical of President Bill Clinton for using the military for nation building, ended up getting us into two massive nation building endeavors that dwarf anything that ever happened when Clinton was in office. I hope I’m wrong and that by this time next year we are withdrawing forces from Afghanistan and the situation there has gotten a lot better, but I’m doubtful that will happen.

Ali Kamran Chishti: Do you see, as an Air Force Officer, the effectiveness of drones? And how it is affecting Pakistan?

Colonel Morris Davis: I don’t think there is any question that drones are effective, at least from our perspective. For us they are safe, inexpensive, and can loiter a lot longer than conventional aircraft and provide a better blanket of close air support. It’s how we use them that is problematic. I am concerned about the legality of how we’re employing them. If a CIA employee operates a drone from a remote site far from the front lines and fires a missile that kills people on the ground in another country, what is the legal status of that employee? Where does he or she fit in the Geneva Convention classification of personnel in an armed conflict? Is he or she a lawful or unlawful combatant? How would we react if the Mexican government pursued a drug cartel member across the US border using a drone and then fired a missile that killed the drug smuggler and some American citizens? It may be a case of where we condone doing ourselves what we’d condemn others for doing, similar to how some view our use of torture compared to torture by others.

Ali Kamran Chishti: Thank you so much for the time.

Colonel Morris Davis: It’s always a pleasure, Ali.

POSTSCRIPT: Col. Davis wrote to me with the following clarifications of aspects of the interview:

What Ali reported is for the most part accurate. It was based in part on my written responses to his written questions as well as a brief telephone conversation that Ali then wove together into a single narrative. The part of the narrative that came from my written answers is mostly accurate, although it was edited after I submitted it and it is not a verbatim version of what I sent Ali. Some of the narrative that came from the telephone conversation is not “spot-on.” I suspect that is due in large part to Ali and I having some difficulty understanding the other because of our distinct accents. To be clear, I did meet with a Pakistani official to see if they would be willing to assist us in preparing for the military commissions, but there was no mention whatsoever of them doing so in return for access to a detainee or in return for anything else for that matter. The official I met with was willing to arrange a meeting in Pakistan with government officials to discuss the extent, if any, of their assistance to us, but the trip did not take place before I resigned. Also, I don’t know whether anyone from their government checked up on Pakistani detainees. Ali asked if I ever saw anyone from the Pakistani government at Gitmo and I said I had not, and that the only government I knew for sure that visited one of its citizens was the Canadian’s meeting with Khadr. As for your assertion about the timing of the Supreme Court’s decision in the Hamdan case and the transfer of the high value detainees, I know from personal involvement that the latter was independent of the former.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Calling for US Accountability on the International Day in Support of Victims of Torture

Yesterday was the International Day in Support of Victims of Torture, established by the United Nations General Assembly in December 1997, to mark the ratification of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on June 26, 1987.

As UN Secretary-General Kofi Annan explained on June 26, 1998 (when the day was first marked), “This is a day on which we pay our respects to those who have endured the unimaginable. This is an occasion for the world to speak up against the unspeakable. It is long overdue that a day be dedicated to remembering and supporting the many victims and survivors of torture around the world.”

At the time, Kofi Annan lamented that, although over 100 States had ratified the Convention, the use of torture was “still reported” in many of those countries. Nevertheless, for the US and other supposed civilized countries, the creation of the International Day came at a time when, in general, the involvement of Western nations in torture was minimal.

The threat posed by Osama bin Laden had not yet manifested itself in the African embassy bombings of 1998, the attack on the USS Cole in 2000, and, finally, the attacks on the US mainland on September 11, 2001, which prompted the Bush administration to actively embrace torture. Within a year of the attacks, the President had secured memos purporting to redefine torture, prepared by lawyers in the Justice Department’s Office of Legal Counsel, which was supposed to provide the Executive branch with impartial legal advice.

President Clinton and “extraordinary rendition”

In retrospect, however, the Clinton administration had begun to pave the way for the torture regime that was developed in response to the 9/11 attacks by allowing — or tacitly encouraging — the CIA to become involved in a program of “extraordinary rendition” as early as 1995. Building on a long tradition of kidnapping foreign nationals and bringing them to the US to face justice (the original version of “rendition”), the “extraordinary rendition” program did away with the US courts, and allowed the CIA to kidnap terror suspects in various countries, and to dispose of them by sending them to Egypt.

The first known “extraordinary rendition” took place in September 1995, when Tal’at Fu’ad Qassim, also known as Abu Talal al-Qasimi, a purported Egyptian militant who had been living in exile in Denmark, was seized in Croatia by US forces and, reportedly, questioned aboard a US navy vessel and handed over to Egypt “in the middle of the Adriatic Sea.” He was executed in 2000.

Disturbingly, the plan to seize the next five targets of the “extraordinary rendition” program began on June 25, 1998 (the day before the first International Day in Support of Victims of Torture), when, as the Wall Street Journal explained in 2001, the Egyptian government “issued a prearranged arrest warrant” for Shawki Salama Attiya, who apparently “produce[d] fake visas and other bogus documents” for a cell of Egyptian Islamic Jihad members in Albania. That same day, Albanian police, with the co-operation of the CIA, seized Attiya. “Several days later,” the report continued, “he was taken, handcuffed and blindfolded, to [an] abandoned air base, north of Tirana,” and flown to Egypt, arriving on July 2, 1998. Over the next month, four other members of the alleged cell were kidnapped and flown to Egypt. Attiya later received a life sentence, while two others were hanged, and two others received 10-year sentences. In a bleak postscript, Egyptian Islamic Jihad (which, by this point, was intimately tied to the activities of al-Qaeda through the figure of Ayman al-Zawahiri) responded to the “extraordinary renditions” by vowing vengeance, and the bombings of the US embassies in Nairobi and Dar-es-Salaam, which killed 223 people and wounded over 4,000 others, took place on August 7, 1998.

Although President Clinton’s program, which apparently involved no more than 14 renditions, was tightly controlled and included a strict paper trail and a requirement that convictions in Egypt had already been obtained (however unreliable those convictions may have been), the program provided a ready-made template for the Bush administration.

Torture today

Twelve years after the original International Day in Support of Victims of Torture, the landscape has changed profoundly. Seizing on the “extraordinary rendition” program, the Bush administration involved other countries, including Jordan, Morocco and Syria, and established its own secret prisons in countries including Thailand, Poland, Romania and Lithuania, as well as indulging in the industrial-scale rendition of prisoners to Guantánamo. It has left in its wake malignant policies, whose effects have proven difficult to undo, not only at Guantánamo, but also at Bagram in Afghanistan.

This is in spite of the fact that, on his second day in office, President Obama issued an executive order upholding the absolute ban on torture. However, although this purported to mark a clean break with the Bush administration, its impact has been undermined by the refusal of President Obama — or of his Attorney General, Eric Holder — to order a thorough, independent investigation into the Bush administration’s torture program. This reluctance to address the crimes committed by the previous administration was signaled before Obama took office, when he explained his “belief that we need to look forward as opposed to looking backwards.”

The impact of President Obama’s torture ban has also been damaged by persistent allegations of torture in a secret prison at Bagram, and by the President’s inability to meet his self-imposed deadline of January 22, 2010 for the closure of Guantánamo, where, as critics rightly point out, the open-ended nature of detention is itself a form of abuse. Although the prisoners have had access to lawyers since 2004, and have been able to lodge habeas corpus petitions since June 2008, the underlying situation is not markedly different from how it was in October 2003, when, in a break with protocol, Christophe Girod of the International Committee of the Red Cross told the New York Times, “The open-endedness of the situation and its impact on the mental health of the population has become a major problem.”

Revelations of torture since President Obama took office

The Obama administration’s refusal to open an official investigation into its predecessor’s record has allowed admissions of torture to fester, unaddressed or cynically ignored, in almost every policy area relating to the detention of “War on Terror” prisoners. Just before Obama took office, for example, Susan Crawford, a close friend of Vice President Dick Cheney and a retired judge who served as the convening authority for the military commission trial system at Guantánamo, admitted that she had refused to press charges against Mohammed al-Qahtani, a Saudi prisoner subjected to a brutal program of “enhanced interrogation” in late 2002 and early 2003, because, as she stated bluntly in an interview with Bob Woodward, “We tortured Qahtani. His treatment met the legal definition of torture.”

Mohammed al-Qahtani was not the only prisoner at Guantánamo who was subjected to torture. According to an official who spoke to the New York Times for an article published in January 2005, as many as 1 in 6 of the prisoners held were subjected to “enhanced interrogation techniques.”

Moreover, in the last year and a half, President Obama’s inaction has been regularly challenged, in reports on the treatment in secret CIA prisons of 14 “high-value detainees” transferred to Guantánamo in September 2006, and in reports of the torture of other prisoners. These have surfaced in the District Court in Washington D.C., where judges have been delivering rulings on the prisoners’ habeas corpus petitions, and to date, have found for the prisoners in 36 out of 50 cases.

In April 2009, a confidential ICRC report on the 14 “high-value detainees,” delivered to the US government in 2007, was leaked to the New York Review of Books (PDF). The report, based on interviews with the 14 men at Guantánamo, described how they had been treated in the CIA’s secret prisons, and the men’s statements were so disturbing that the ICRC concluded:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.

That same month, there was further bad news for Bush administration officials. In response to a court order, the Obama administration released four “torture memos,” written in August 2002 and May 2005 by lawyers in the Justice Department’s Office of Legal Counsel (John Yoo, Jay S. Bybee and Stephen Bradbury), which demonstrated a disturbing predilection for twisting the torture statute out of all recognizable shape in an attempt to redefine torture, so that it could be used by the CIA.

This was followed by an unclassified version of a damning 231-page Senate Armed Services Committee investigation into detainee abuse (PDF), which, although it managed to avoid the use of the word torture, nevertheless concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” Those held responsible included President George W. Bush, defense secretary Donald Rumsfeld, Vice President Dick Cheney’s legal counsel (and later chief of staff) David Addington, Pentagon general counsel William J. Haynes II, Gen. Richard Myers, the Chairman of the Joint Chiefs of Staff, White House general counsel (and later Attorney General) Alberto Gonzales, Guantánamo commanders Maj. Gen. Michael Dunlavey and Maj. Gen. Geoffrey Miller, and Lt. Gen. Ricardo Sanchez, the commander of coalition forces in Iraq.

Revelations of torture in the Guantánamo prisoners’ habeas petitions

In addition, other references to torture have steadily seeped out of the District Court in Washington D.C., in the judges’ rulings on the Guantánamo prisoners’ habeas corpus petitions. The first concerned Mohamed Jawad, an Afghan teenager seized after a grenade attack in Kabul in December 2002, who had been put forward for a trial by military commission under President Bush. In Jawad’s case, the government ignored the fact that Army Col. Stephen Henley, the military judge in his proposed trial by military commission, had ruled on two separate occasions in October and November 2008 that the crux of the government’s case against him — two “confessions” made on the day of his capture, the first in Afghan custody, and the second, just hours later, in US custody — were inadmissible because they had been obtained through treatment that constituted torture.

Without these confessions, the government essentially had no case, but the Justice Department persisted in pursuing his case before Judge Ellen Segal Huvelle, who granted Jawad’s habeas petition last July after repeatedly stressing that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes.”

In September, Judge Colleen Kollar-Kotelly granted the habeas petition of Fouad al-Rabiah, a Kuwaiti prisoner, after discovering that his confessions about meeting Osama bin Laden and distributing supplies in Afghanistan’s Tora Bora mountains, during a showdown between al-Qaeda and US forces in December 2001, were completely false, and had been conjured up by al-Rabiah after he was subjected to prolonged sleep deprivation and other “enhanced interrogation techniques.”

In November, Judge Kollar-Kotelly granted the habeas petition of Farhi Saeed bin Mohammed, an Algerian, after she concluded that crucial elements of the government’s supposed evidence were unreliable, because they came from statements made by the British resident Binyam Mohamed, shortly after his arrival at Bagram in May 2004. Judge Kollar-Kotelly ruled that Mohamed’s statements were unreliable because, after he was seized in Pakistan in April 2002, he was sent by the CIA to Morocco, where he was reportedly tortured for 18 months, and was then held for another four months in the CIA’s notorious “Dark Prison” near Kabul.

To establish the unreliability of Mohamed’s evidence. Judge Kollar-Kotelly devoted much of her unclassified opinion to a harrowing analysis of his treatment, noting, in particular, that “The government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment,” and reminding senior officials that the UN Convention Against Torture “requires that governments which are party to it ‘ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’”

The month after the bin Mohammed ruling, Judge Ricardo Urbina granted the habeas petition of Saeed Hatim, a Yemeni, after crediting Hatim’s claims that, while held in the US prison at Kandahar, Afghanistan, before his transfer to Guantánamo:

he was severely mistreated, including being beaten repeatedly, being kicked in the knees and having duct tape used to hold blindfolds on his head. To this day, he cannot raise his left arm without feeling pain. The petitioner also alleges that he was threatened with rape if he did not confess to being a member of the Taliban or al-Qaeda. As a result, he claims that the inculpatory statements that he made in Kandahar were made only because of these threats. He further alleges that after being transferred to GTMO in 2002, he repeated those inculpatory statements in 2004 because he feared that he would be punished if he changed his story.

The most recent example of torture being exposed in the District Court came in February this year, when, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni, Judge Henry H. Kennedy Jr. granted his habeas petition, after refusing to accept the government’s central allegation — that Uthman had been a bodyguard for Osama bin Laden — because these allegations had been made by two men (Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi) who were held in secret prisons before their transfer to Guantánamo, and 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.”

The need for a thorough investigation

It should be apparent from these reports that the Obama administration will find it impossible to staunch the flow of torture stories, and, moreover, that attempts to do so will only end up destroying whatever lingering credibility the administration has regarding its purported respect for human rights. In January, the Justice Department cynically allowed a senior DoJ official, David Margolis, to override the conclusion of a four-year internal investigation into John Yoo and Jay Bybee, which had concluded that both men should face disciplinary measures for “professional misconduct,” by stating that they had only exercised “poor judgment.”

However, that same month, the United Nations issued a detailed report on secret detention, which, while cautiously endorsing the changes introduced by the Obama administration, pointedly asked what had happened to the many dozens of prisoners held in the CIA’s secret prisons, or rendered by the CIA to prisons in other countries, who had not ended up in Guantánamo. Moreover, just last week, a psychologist in Texas filed a complaint with the Texas State Board of Examiners of Psychologists regarding multiple ethical violations committed by Dr. James Mitchell, one of the architects of the Bush administration’s torture program.

With more revelations of torture expected in the District Court, President Obama would do well to reflect, on this particular day, that when Ronald Reagan signed the UN Convention Against Torture in 1988 he willingly accepted that there are “no exceptional circumstances whatsoever” justifying torture, and also accepted that all signatory countries are obliged to “ensure that all acts of torture are offenses under its criminal law” and “either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”

In January this year, Glenn Greenwald noted that, when L. Paul Bremer, then the senior State Department official in charge of terrorism policies, described the Reagan administration’s official policy towards terrorists, he declared that “a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law against them.” Now, however, we have fallen so far from these ideals that, as Greenwald explained:

The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe … In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike.

On the International Day in Support of Victims of Torture, it is time for Americans who care about justice to demand that the Obama administration stops vacillating on torture, returns to Ronald Reagan’s “Leftist fringe,” and initiates a thorough investigation into the torture policies implemented by the Bush administration.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. Also see the archive of articles about Guantánamo and habeas corpus here. For articles about US torture, see the links following the article here, here and here, and the archive of articles here. For chronological lists of all my articles, with links, see here.

Three Neglected Ex-Guantánamo Prisoners in Slovakia Embark on a Hunger Strike

On Thursday, Branislav Tichý, the director of Amnesty International Slovensko, told the press that three former Guantánamo prisoners, who had been released in Slovakia on January 25 this year, had embarked on a hunger strike. According to the Slovak Spectator, Tichý explained that they were “protesting bad conditions and the treatment they are receiving from Slovak authorities in a detention facility in Medved’ov in Trnava Region.”

The complaints are not entirely unexpected. As Reuters explained when the men first arrived in the country, a spokesman for the police stated that they “were being placed in a camp for asylum seekers in the eastern part of Slovakia, Humenné, which is run by the interior ministry.” No time limit was set for their removal from this camp to a location in which they might be able to rebuild their lives, establish ties with the local community and look for work, but RTT News, a New York-based wire service, suggested that they would be “released” after “an 18-month process of acclimatization to Slovakia, including language instruction and a search for employment,” but would remain “under surveillance for an unspecified period.” This was in spite of the fact that, the week before their arrival, the Slovak Foreign Minister Miroslav Lajcak had pointed out, “The three are not criminals, none of them has been either accused or convicted.”

The three men were not identified on arrival in Slovakia, but it appears that the complaints are being driven by Adel Fattough Ali El-Gazzar, a former Egyptian army officer with a master’s degree in economics, who was first cleared for release from Guantánamo by a military review board in 2006, and was then cleared again last year by President Obama’s Guantánamo Review Task Force, which reviewed the cases of all the Guantánamo prisoners, and recommended that 97 of the remaining 181 men should be released.

El-Gazzar is also an amputee, who lost a leg in a US bombing raid while visiting a refugee camp on the border of Afghanistan and Pakistan, where he had traveled to conduct humanitarian aid, and, in Guantánamo, he had been respected as a natural leader, becoming part of a six-man “Prisoner’s Council,” which also included the British resident Shaker Aamer, during a brief period in the summer of 2005 when the authorities toyed with implementing the Geneva Conventions.

According to El-Gazzar, who called Amnesty representatives on Thursday morning, he and his colleagues “are not allowed contact with anyone except for personnel in the facility and their lawyer.” In addition, he “described their living conditions as poor — having only beds and a sink at their disposal and being allowed to leave their rooms for only an hour per day.”

El-Gazzar’s claims were disputed by Bernard Priecel, the chief officer at the Interior Ministry’s Migration Bureau, who said that there was “no reason” for the men to be on a hunger strike, because they “enjoy high standards in terms of both security and the re-integration process itself and are receiving personal treatment eight hours a day, including psychological care and lessons in the Slovak language.” He added that “they do socialize, use cell phones and have an internet connection available.”

On Friday, the dpa news agency spoke to a representative of Amnesty International Slovensko, who confirmed that the men “felt isolated and badly looked after,” and also explained that they were concerned because, after five months, their legal status “was still not clear.” While continuing to refute the men’s other claims, Bernard Priecel conceded that “the lack of clarity on their legal status could be a burden for them.” As dpa added, “At the moment they [are] simply foreigners, without asylum seeker status,” even though, when they arrived in Slovakia in January, Interior Minister Robert Kalinak had “promised that their residence permit status would be cleared up quickly.”

In light of the publicity generated by the story of the hunger strike — something which, ironically, the men may well have learned in Guantánamo — it is to be hoped that the Slovakian government will move swiftly to formalize their residence permit status and to rehouse them somewhere other than a camp for asylum seekers.

It is clear, however, that the blame for the men’s feelings of isolation and abandonment lies not just with the Slovak government, but also with the EU as a whole, which has failed to establish a coherent policy regarding standards of care for the 17 men who, since Barack Obama became President, have been resettled in Albania, Belgium, Bulgaria, France, Hungary, Ireland, Portugal, Slovakia and Spain (15 others have been resettled in Bermuda, Georgia, Palau and Switzerland).

While most of these men seems to be coping reasonably well with their adjustment to life in a new country after the traumatizing effects of their long imprisonment in Guantánamo, former prisoners in the UK, who are in touch with released prisoners around the world, report that the man released in Hungary last December, a Palestinian, is also struggling to cope with his isolation.

Part of the problem lies with attempts — or the lack of attempts — to reunite these men with their families, if they are married. Although the French government succeeded in reuniting Lakhdar Boumediene, an Algerian released in France last May, with his wife and son, and the Irish government did the same for Oybek Jabbarov, an Uzbek released in Ireland last September, who was reunited with his wife and two sons in December, other ex-prisoners are still cut off from their families, and for the Palestinian in Hungary, who does not even have the companionship of other ex-prisoners, this is particularly hard to bear.

However, while some of these problems need addressing across the member states of the EU, the main responsibility for this generally chaotic state of affairs rests with the Obama administration, which has been remarkably opaque about what provisions it makes for former prisoners resettled in other countries, and which, moreover, has compounded these problems by refusing to accept its own responsibility for the Bush administration’s largely indiscriminate detention policies.

These problems began in earnest in April 2009, when President Obama called a halt to an admirable plan to provides homes on the US mainland for two cleared Guantánamo prisoners who could not be repatriated. The plan had been conceived by President Obama’s most senior legal advisor, White House Counsel Greg Craig, and was supported by Secretary of State Hillary Clinton and defense secretary Robert Gates, but when the news was leaked, and the President came under pressure from Republican critics, the men in question — two of the 17 Uighurs in Guantánamo, Muslims from China’s Xinjiang province, whose release had been ordered by a US court in October 2008 — were cast back into a disturbing legal limbo.

Emboldened by the President’s capitulation, his critics in Congress — both Republicans and members of his own party — then passed a law preventing him from bringing any cleared prisoner to live in the US, putting all the pressure for rehousing these men into the hands of Daniel Fried, a senior diplomat who had been appointed as the Obama administration’s Special Envoy to Guantánamo in March 2009.

In a candid interview with the BBC in September 2009, Fried explained that, although he would “not criticize Congress … It is fair to say, as just an objective statement, that the US could resettle more detainees [worldwide], had we been willing to take in some.”

That, of course, is something of an understatement, but as the plight of the men in Slovakia and Hungary shows, the least the US can do now is to ensure that it is not just dumping former prisoners in Europe and walking away, but is prepared to ensure that they receive as much support as possible — in terms of housing, financial support, psychological welfare, cultural and linguistic integration, and the search for employment — to facilitate their transition to a normal, stable life after the long years of freedom that they were so unjustly denied.

POSTSCRIPT: A journalist friend in Slovakia has written to me to say that he has recently spoken to Adel Fattough Ali El-Gazzar. “He was really upset about the conditions they live in here,” my friend explained, adding, “He told me that firstly, in Guantánamo, the Slovak delegation didn’t mention the word detention — they told them that they would be free with some restrictions. When they arrived in Slovakia they told them they had to stay in a detention facility for asylum seekers for six months, but after that they would get a house in town with Muslim community. But one month ago they told the men that plan had changed and they would go to another detention facility for another six months. He was really frustrated and that’s the reason why they started the hunger strike.”

POSTSCRIPT 2: I wrote to my Slovak friend to ask if he could clarify whether the men had first been held in Humenné, an Asylum Seeker Reception Centre in the east of Slovakia, as Reuters suggested on their arrival in Slovakia in January, and had recently been moved to Medved’ov, a Detention Centre in the south west of the country. He replied that Adel “didnt mention anything about Humenné, so I assume they never have been there. They arrived on 25th January at Bratislava airport and the government accommodated them in Medved’ov.” Crucially, he also explained that Slovak officials “don’t want to comment their status,” and are claiming that the only reason that the men are upset is because they have post-traumatic stress disorder. I don’t want to leap to judgment, but as I explained my Slovak friend, “It sounds as though the government officials are being rather insensitive regarding the men’s needs, both psychologically and emotionally, if they are so dismissive of the effects of post-traumatic stress disorder on men held in a Detention Centre in a new country, with very little support.”

Note: Please see the excellent Global Detention Project website for detailed information about detention centres around the world.

For updates on this story, including more information about Adel El-Gazzar, and the stories of the two men released with him (Poolad Tsiradzho, an Azerbaijani, and Rafiq al-Hami, a Tunisian), see: “It was better in Guantánamo,” Complains Egyptian Held in Slovak Detention Center, and Who Are the Three Ex-Guantánamo Prisoners on Hunger Strike in Slovakia?

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Eurasia Review,

See the following for articles about the 142 prisoners released from Guantánamo from June 2007 to January 2009, and the 59 prisoners released from February 2009 to May 2010, whose stories are covered in more detail than is available anywhere else –- either in print or on the Internet –- although many of them, of course, are also covered in The Guantánamo Files: June 2007 –- 2 Tunisians, 4 Yemenis (here, here and here); July 2007 –- 16 Saudis; August 2007 –- 1 Bahraini, 5 Afghans; September 2007 –- 16 Saudis; September 2007 –- 1 Mauritanian; September 2007 –- 1 Libyan, 1 Yemeni, 6 Afghans; November 2007 –- 3 Jordanians, 8 Afghans; November 2007 –- 14 Saudis; December 2007 –- 2 Sudanese; December 2007 –- 13 Afghans (here and here); December 2007 –- 3 British residents; December 2007 –- 10 Saudis; May 2008 –- 3 Sudanese, 1 Moroccan, 5 Afghans (here, here and here); July 2008 –- 2 Algerians; July 2008 –- 1 Qatari, 1 United Arab Emirati, 1 Afghan; August 2008 –- 2 Algerians; September 2008 –- 1 Pakistani, 2 Afghans (here and here); September 2008 –- 1 Sudanese, 1 Algerian; November 2008 –- 1 Kazakh, 1 Somali, 1 Tajik; November 2008 –- 2 Algerians; November 2008 –- 1 Yemeni (Salim Hamdan) repatriated to serve out the last month of his sentence; December 2008 –- 3 Bosnian Algerians; January 2009 –- 1 Afghan, 1 Algerian, 4 Iraqis; ; February 2009 — 1 British resident (Binyam Mohamed); May 2009 — 1 Bosnian Algerian (Lakhdar Boumediene); June 2009 — 1 Chadian (Mohammed El-Gharani), 4 Uighurs to Bermuda, 1 Iraqi, 3 Saudis (here and here); August 2009 — 1 Afghan (Mohamed Jawad), 2 Syrians to Portugal; September 2009 — 1 Yemeni, 2 Uzbeks to Ireland (here and here); October 2009 — 1 Kuwaiti, 1 prisoner of undisclosed nationality to Belgium; October 2009 — 6 Uighurs to Palau; November 2009 — 1 Bosnian Algerian to France, 1 unidentified Palestinian to Hungary, 2 Tunisians to Italian custody; December 2009 — 1 Kuwaiti (Fouad al-Rabiah); December 2009 — 2 Somalis, 4 Afghans, 6 Yemenis; January 2010 — 2 Algerians, 1 Egyptian and 2 prisoners of undisclosed nationality to Slovakia, 1 unidentified Uzbek to Switzerland; February 2010 — 1 Egyptian, 1 Libyan, 1 Tunisian to Albania, 1 Palestinian to Spain; March 2010 — 1 Libyan, 2 unidentified prisoners to Georgia, 2 Uighurs to Switzerland; May 2010 — 1 Syrian to Bulgaria, 1 Yemeni to Spain.

Amnesty International Blasts Obama for Delays and Injustice on Human Rights, Guantánamo and Terrorism

To mark the International Day in Support of Victims of Torture, I have an article published on Truthout (which I’ll be publishing here tomorrow) and have just posted an article featuring statements by UN Secretary-General Ban Ki-moon and other UN experts, but in the meantime I thought this was a good opportunity to mark the occasion by cross-posting an excellent Amnesty International report issued on June 23 (“Normalizing delay, perpetuating injustice, undermining the ‘rules of the road’”), which is not only appropriate for today, but is also a great review of the Obama administration’s failures with regard to human rights, and a compelling analysis of a document that I haven’t had time to review myself — the 60-page National Security Strategy, published by the White House last month, which, as Amnesty explains, displays America’s “particular fluency in the language of human rights,” even though its own actions “have frequently fallen short of its international obligations”.

The report echoes my own complaints about the Obama administration’s poor response to the challenge of cleaning up after the brutal and chaotic arrogance of the Bush years, with regard to human rights and the so-called “War on Terror.” The authors criticize the Obama administration’s reliance for its detention policies on the Authorization for Use of Military Force, the founding document of the phony “war,” which equates soldiers with terrorists, but fails to treat terrorists as criminals, and continues to be used as an excuse for indefinite detention. The report also lambasts the administration for its unconscionable delays in releasing prisoners from Guantánamo who are not regarded as significant terrorist suspects, and also focuses on recent court activity in a case that I have not had the opportunity to deal with: that of Obaydullah (aka Obaidullah), a largely insignificant minor Afghan insurgent who has found himself held for years in an unacceptable legal limbo, charged in a military commission system that is barely functioning, and yet unable to challenge his detention through a habeas corpus petition. The report also focuses on the administration’s refusal to acknowledge that grievous errors were made in the case of Maher Arar, an innocent Canadian who was subjected to “extraordinary rendition” and torture in Syria on little more than a whim, and also dares to ask why it is that men like Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, is still held without trial, over seven years after his capture.

USA: Normalizing delay, perpetuating injustice, undermining the “rules of the road”: Adherence to international human rights must be central to security strategy

Amnesty International, AI Index: AMR 51/053/2010, June 23, 2010

And we reject the notion that lasting security and prosperity can be found by turning away from universal rights … our support for universal rights is both fundamental to American leadership and a source of our strength in the world.
President Barack Obama, National Security Strategy, May 2010

Acting to give real meaning to words could be said to be at the heart of the human rights project begun in 1948. Adopting the Universal Declaration of Human Rights 62 years ago, the international community pointed to its text as a “common standard” — not for mere recitation, but for actual “achievement”. Fulfilling, not simply repeating, the words of the Universal Declaration was, and must still be, the aspiration “for all peoples and all nations” as the “foundation of freedom, justice and peace in the world”.

The USA has long displayed a particular fluency in the language of human rights, but its own actions, often couched in terms of domestic values, have frequently fallen short of its international obligations. This unfortunately remains the case today in respect of detentions, trials, accountability and remedy in the counter-terrorism context.

In the National Security Strategies issued under President George W. Bush in 2002 and 2006, the USA promised to champion the “non-negotiable demands of human dignity”, including the “rule of law” and “equal justice”, even as it sought to keep detainees it labeled as “enemy combatants” in a global “war on terror” from judicial supervision and pursued interrogation techniques and detention conditions that violated the international prohibition of torture and other cruel, inhuman or degrading treatment. Clearly the administration considered “human dignity” during this period to mean something quite different from the understanding most governments around the world, including many of the USA’s closest international partners, and international human rights bodies, had held for decades.

The latest National Security Strategy released by the White House on 27 May 2010 [PDF] also makes promises on human rights and human dignity, some general, some specific. Generally, the strategy asserts, one of four “enduring national interests” for the USA is ensuring “respect for universal values at home and around the world”. In addition, it asserts that the “rules of the road must be followed and there must be consequences for those nations that break the rules”, such as on their “human rights commitments”. More specifically, it reiterates among other things that torture is prohibited “without exception or equivocation”. While this is welcome, some other parts of the security strategy, such as its restatement of the Obama administration’s decision to retain military commission trials and indefinite detention without charge or criminal trial for use against selected terrorism suspects, are not:

When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective. For detainees who cannot be prosecuted — but pose a danger to the American people — we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

As the legal authority for such detentions, the US authorities continue to rely upon the Authorization for Use of Military Force (AUMF), a broad resolution passed after little genuine debate by Congress in the immediate wake of the attacks of 11 September 2001. Because of the human rights violations that have been committed in the name of the AUMF over the years, Amnesty International has called since 2006 for its revocation. When the Obama administration took office, the organization called on it to clarify that it would not interpret the AUMF as representing any intent on the part of Congress to authorize violations of international human rights or humanitarian law, or as otherwise providing authority for such violations.

Closure of the detention facilities at the US Naval Base in Guantánamo Bay, Cuba, is a goal repeated in the National Security Strategy, with the stated purpose not necessarily to respect and ensure human rights per se, but rather “to deny violent extremists one of their most potent recruitment tools.” A human rights approach to ending the Guantánamo detentions would include the principle that any detainee not charged with a recognizable criminal offence for trial under fair procedures in an independent and impartial court — not a military commission with impoverished due process guarantees reserved for foreign nationals alone — should be immediately released, while ensuring that no one is forcibly returned to a country where he would face human rights violations. The US authorities should drop any intention to construct a system for indefinite “national security” detention without criminal trial of anyone who is not recognised as a prisoner of war in connection with an international armed conflict. To simply move the detention practices put in place at Guantánamo to some other location would be as hollow a gesture as would be pronouncing the terms of universal human rights while depriving them of any real meaning or effect.

A human rights approach is the one most likely to encourage constructive international cooperation with those partners who themselves profess to adhere to the principles of human rights and rule of law. A senior US Justice Department official [Assistant Attorney General David Kris] stated recently:

[S]ome countries won’t provide us with evidence we may need to hold suspected terrorists in law of war detention or prosecute them in military commissions. In some cases, they have agreed to extradite terrorist suspects to us only on the condition that they not be tried in military commissions. In such cases, use of federal courts may mean the difference between holding a terrorist and having him go free.

International cooperation is a theme that runs through the May 2010 National Security Strategy.

Redefining “prompt”

It is a basic principle of international human rights law that anyone deprived of his or her liberty by arrest or detention be entitled to challenge the lawfulness of their detention in a court. The purpose of this provision, including as articulated in article 9.4 of the International Covenant on Civil and Political Rights (ICCPR), is so that an independent and impartial court can rule “without delay” on the lawfulness of the individual’s detention and order his or her release if the detention is unlawful. Promptness of action is an essential ingredient. Allowing governments to take timeliness or judicial enforceability out of the equation would make a mockery of this protection against arbitrary detention.

The USA criticizes other governments for their failure to stick to the “rules of the road” on judicial review of detentions. For example, in its most recent assessment of the human rights records of other countries, an annual assessment compiled by the US Department of State which uses the Universal Declaration of Human Rights as its benchmark, the USA takes issue with Egypt’s Emergency Law. Under this law, the USA reports, an individual may be detained without charge or trial “for as long as 30 days, after which a detainee may demand a court hearing to challenge the legality of the detention order”. In similar vein, the USA criticizes Malaysia’s Internal Security Act (ISA):

The ISA empowers police to arrest without a warrant and hold for up to 60 days any person who acts “in a manner prejudicial to the national security or economic life of Malaysia.” During the initial 60 day detention period in special detention centers, the ISA allows for the denial of legal representation and does not require that the case be brought before a court. The home minister may authorize further detention for up to two years, with an unlimited number of two-year extensions to follow. In practice the government infrequently authorized ISA detention beyond two two-year terms. However, in one case the government detained an ISA detainee for approximately seven years.

For the past eight and a half years, the USA has been holding people in indefinite military custody at Guantánamo Bay. Scores remain held without charge or criminal trial there today. Moreover, two years after the US Supreme Court ruled in Boumediene v. Bush [PDF] that those held at the naval base had the right to a “prompt” habeas corpus hearing in US District Court to challenge the lawfulness of their detention, a majority remain without any ruling on the merits of their cases [The Supreme Court stated, “While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing”]. For example, none of the 14 men who were transferred to Guantánamo in early September 2006 from up to four and a half years held incommunicado in secret CIA custody have had rulings on the merits of their challenges.

“Prompt”, it seems, has lost any reasonable meaning for the US authorities — part of the damage to respect for universal human rights principles wrought by the USA’s conduct in what it views as a global “war” against al-Qa’ida and associated groups. Prompt apparently no longer means “without delay” in this context, but something entirely opposite. And even a judicial order for the immediate release of a detainee does not necessarily lead to the individual’s liberty being promptly restored, notwithstanding the express agreement of the USA to article 2.3(c) of the ICCPR by which it, in the clearest possible terms, committed to “ensure that the competent authorities shall enforce such remedies when granted.”

A court’s power to obtain the immediate release of an unlawfully held individual must be “in its effects, real and not merely formal” [UN Human Rights Committee, A v. Australia, Communication No. 560/1993. UN Doc CCPR/C/59/D/560/1993 (30 April 1997), para. 9.5, emphasis added]. However, the US District Court has effectively been reduced to issuing recommendations in the Guantánamo habeas corpus litigation. For even those Guantánamo detainees who have had judicial rulings in their favour are not guaranteed immediate release, and some have been held for months after such rulings as the USA has appealed the rulings (frequently, to engage in protracted and speculative arguments about the scope of possible grounds for detention — drawn out proceedings caused by the absence of any actual specific reference to detention in the AUMF and further demonstrating how woefully the US indefinite detention regime has failed to fulfil the requirement of article 9.1 of the ICCPR that “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”).

The US authorities have also refused to release in the US mainland those who cannot be repatriated for fear of the human rights violations they would face in their home countries. In 36 of the 50 cases so far decided, the detention was found to be unlawful. Thirteen of these 36 men remain in Guantánamo.

One of the most recent such decisions involves the case of Mohamed Mohamed Hassan Odaini, a Yemeni national, who has been held in Guantánamo without charge or trial since June 2002 after being taken into custody as a 17-year-old in Pakistan two months earlier. For more than seven years, the only review of his detention was executive not judicial. Even favourable executive findings did not lead to his release, demonstrating the need for enforceable judicial oversight. In April 2004 a member of the Pentagon’s Criminal Investigation Task Force reviewed Mohamed Odaini’s case and recommended that he be released. In 2007, Mohamed Odaini’s US lawyer was informed that his client had been approved for release from Guantánamo under executive review procedures initiated in 2004 by the Bush administration. In June 2009, his lawyer was told that he had been approved for release under the executive review conducted by the Guantánamo Review Task Force, established under President Obama’s 22 January 2009 executive order on closing the Guantánamo detention facility. Still Mohamed Odaini remained in custody.

The judicial review to which Mohamed Odaini had been entitled for years came to fruition in 2010. On 26 May 2010, over eight years after being taken into custody and nearly two years after the US Supreme Court’s Boumediene ruling, District Court Judge Henry Kennedy found Mohamed Odaini’s detention to be unlawful and ordered his release. Judge Kennedy wrote that the US authorities had

kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody as such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to Al Qaeda.

A month after the decision, Mohamed Odaini remains at Guantánamo, his release already years overdue. In his 26 May ruling, Judge Kennedy ordered the US administration to take “all necessary and appropriate diplomatic steps to facilitate Odaini’s release forthwith” and to report back to the court by no later than 25 June 2010 on the detainee’s status. Even now it is not clear what will happen to Mohamed Odaini given that President Obama in January 2010 ordered a suspension of any transfers to Yemen of Yemeni nationals held in Guantánamo, citing security concerns. The authorities have said that no Yemeni national will be repatriated until this moratorium is lifted [PDF]. Anonymous US administration officials are reported to have said that the administration is considering partially lifting the moratorium in the wake of Judge Kennedy’s ruling. [Note: In a letter to President Obama Mohamed Odaini’s sister wrote, “I speak to you in all the languages and dialects of the world to look to this family with eyes of mercy and sympathy. This family’s main and greatest concern is the return of their son whose long absence made us miss him much more. We knew him as a loving brother and a caring sibling whose parents have been deprived of this love. A missing brother we pray he comes back safe to us”].

Amnesty International continues to call for Mohamed Odaini to be immediately repatriated to Yemen. If there is some legitimate reason why this cannot happen immediately, and immediate release in an appropriate third country is also not possible, Mohamed Odaini should be released in the USA with all necessary assistance and protection to re-establish his life. Indeed, while reparation for the harms done to Mohamed Odaini may seem less pressing than respect and fulfilment of his human right to immediate release, it is worth noting that article 9.5 of the ICCPR expressly provides that “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

Normalizing delay

The USA’s sense of timing and justice also appears to have generally been warped in the case of those Guantánamo detainees it says it intends to prosecute under its global war framework.

The Obama administration, like its predecessor, has sought to entirely block post-Boumediene judicial review in the case of those detainees whom the government has moved to prosecute, even when trial proceedings are not brought within a reasonable time or are proposed under the highly contentious military commission system. A case in point is that of Obaydullah, an Afghan national held in Guantánamo since October 2002 [Prior to this, he was held in Bagram air base in Afghanistan after being taken into US custody there in July 2002]. A post-Boumediene habeas corpus petition challenging the lawfulness of his detention was filed in US District Court in July 2008. Two months later, charges were sworn against Obaydullah under the Military Commissions Act (MCA) of 2006. Two years later, he has neither been tried nor had his habeas corpus petition heard and ruled upon.

After Obaydullah was charged under the MCA, the Bush administration moved to have his habeas corpus petition dismissed or held in abeyance until completion of the military commission proceedings against him. In December 2008, District Court Judge Richard Leon granted the government’s motion and stayed the habeas corpus proceedings. By the time the Obama administration took office in January 2009, the charges against Obaydullah had still not been referred on for trial, and the new administration obtained a suspension of all military commission proceedings while the Guantánamo Review Task Force established by President Obama set about reviewing the Guantánamo detentions. Given the suspension of trial proceedings, Obaydullah’s habeas corpus counsel moved to have the stay on his habeas corpus challenge lifted arguing that “it could be several months or years before he is subjected to such a [trial] proceeding, if at all”. The Obama administration opposed the motion, arguing that the charges against Obaydullah “still remain pending”. On 22 April 2009 Judge Leon refused to lift the stay. Another year has passed since then with the Obaydullah case in limbo.

The case was appealed to the US Court of Appeals for the DC Circuit. In January 2010, the Obama administration told the Court that the Guantánamo Review Task Force had completed its review and that the Attorney General had determined that prosecution in a military commission was “appropriate” for Obaydullah. The government’s brief said that this meant that the “prior cause of delay in the decision as to whether to refer the charges in this case has been lifted”. Five months later, however, the charges against Obaydullah have still not been referred on for trial.

In an opinion released on 18 June 2010 — with Obaydullah soon to enter his ninth year in US military custody — the Court of Appeals revisited the question of the “prompt” habeas corpus hearing to which the US Supreme Court had said two years earlier that the Guantánamo detainees were entitled [PDF]. While not entirely decoupling the habeas corpus question from the trial question, the Court of Appeals noted that the government had given no indication as to whether the charges against Obaydullah would in fact be referred on for trial or, equally important, if so, when. It further noted that under the revised MCA of 2009 there was no deadline upon the convening authority to make a decision as to whether to refer charges on for trial or not. It also noted that under revised rules for military commissions issued by the Pentagon in April 2010 the requirement articulated in the 2007 version of the rules for such a decision to be made “in a prompt manner” had been dropped. The Court of Appeals added:

[O]f course, the charges may be referred to a military commission tomorrow — which could raise anew the question of possible abstention [of the District Court from habeas review] — but they may also be dropped tomorrow, or remain pending for months or years to come. Seeing no reason sufficient to justify denying Obaydullah the “prompt habeas corpus hearing” to which he is entitled, we reverse the order of the district court denying his motion and vacate the stay of his habeas corpus petition.

The Court of Appeals sent the case back to the District Court to pursue the habeas corpus proceedings. In the absence of an appeal from the administration, or moves to refer the charges on for trial and a court again suspending consideration the habeas corpus petition, Obaydullah’s challenge on the lawfulness of his detention might eventually be heard. It has already been delayed for years too long.

The National Security Strategy of May 2010 promises “swift and sure justice” in the case of those suspected of terrorist offences. Domestic political considerations are taking the upper hand in ensuring that delays continue, however.

Under the ICCPR, anyone charged for trial has the right to be tried “without undue delay” (article 14.3(c)) in an independent and impartial court (article 14.1). The UN Human Rights Committee, the expert body established under the ICCPR to monitor its implementation, has emphasised that this right is “not only designed to avoid keeping persons too long in a state of uncertainty about their fate … but also to serve the interests of justice.” Uncertainty remains the norm for Guantánamo detainees, however, the interests of justice undermined by domestic politics.

Khalid Sheikh Mohammed was indicted in 1996 in US federal court for his alleged role in the Manila air (or “Bojinka”) plot to blow up a dozen US airliners over the Pacific, and was the subject of a reported US plan at the time of the indictment for the FBI to arrest him in Qatar and transfer him to the USA for trial. He was eventually taken into custody in March 2003 in Pakistan. Rather than being extradited and brought to trial in the USA, however, he was summarily handed over to US agents and held in secret CIA custody for the next three and a half years and subject to enforced disappearance, torture and other cruel, inhuman or degrading treatment authorized at high levels of the US government.

On 6 September 2006, President George W. Bush announced that Khalid Sheikh Mohammed had days earlier been transferred to military detention in Guantánamo where he would face trial. He was eventually charged in February 2008 under the Military Commissions Act of 2008 with involvement in the attacks of 11 September 2001. These charges were pending against him and four other detainees at the time the Bush administration left office in January 2009. The cases sat in stasis for another 10 months until, on 13 November 2009, Attorney General Eric Holder announced that the five men “accused of conspiring to commit the 9/11 attacks” would be transferred for prosecution in federal court in New York, adding that their trials had been “too long delayed”. However, hopes have been dashed that the administration which ordered that the CIA’s long-term secret detention facilities be closed would also act with urgency to release or bring to trial the individuals who had been held in them. Today, over seven months after the Attorney General’s announcement — and over seven years after Khalid Sheikh Mohammed was taken into custody — the five men remain in Guantánamo along with more than 170 others.

Confirmation that the certainty of Attorney General Holder’s November 2009 announcement had taken on an elastic quality came when he told the US Senate Judiciary Committee on 14 April 2010 that the administration was reviewing the question of where to prosecute the five detainees — in military commissions or in federal court — and that “no final decision has been made about the forum” in which they would be tried. He said “we expect that we will be in a position to make that determination, I think, in a number of weeks”. What number he had in mind remains a mystery as the weeks have turned into months, leaving the USA on the wrong side of its obligation to bring these men to trial within a reasonable time or release them. There are suspicions now that, for political reasons, the administration may put off the decision until after the mid-term congressional elections in November 2010. This would deepen an already shameful state of affairs and cement a violation of the USA’s international obligations.

The Obama administration has been in office for 17 months. Regardless of the failings of the previous administration, the USA’s failure to ensure within a reasonable time fair trials or release of detainees labelled by the previous administration as “enemy combatants” is unacceptable. A fully functioning civilian judicial system, with the experience, capacity and procedures to deal with complex terrorism prosecutions, was available from day one. Military commissions should long ago have been abandoned in favour of this system.

Perpetuating injustice

The words “effective remedy” are also being drained of meaning by the USA. As a state party to the ICCPR, the USA has undertaken to ensure that anyone whose rights under the treaty have been violated has an effective remedy. As Amnesty International has previously pointed out, this administration, like its predecessor, is blocking remedy for counter-terrorism abuses, in violation of the USA’s obligations. A recent example concerns Maher Arar.

On 14 June 2010, the US Supreme Court announced that it was refusing to consider the case of Maher Arar, a denial that gave the administration what it had asked for in a petition filed with the Court in May [see here for the court documents from January 2004 onwards]. The Supreme Court’s failure to take the case means that the ruling of the US Court of Appeals for the Second Circuit is allowed to stand. In November 2009, the Second Circuit had dismissed the lawsuit brought by Maher Arar, a dual Canadian/Syrian citizen who was arrested at a New York airport in September 2002 while travelling on a Canadian passport en route home to Canada from vacation in Tunisia. After 12 days held incommunicado by the US authorities, he was sent, via Jordan, to Syria, where he was held for a year, including 10 months in a small underground cell. A Canadian judicial commission later concluded that he was subjected to torture during that time. His lawsuit claimed that the US officials conspired to send him to Syria for the purpose of interrogation under torture, and provided Syria with information and questions for the interrogation.

In the face of a dissent by four of the Second Circuit judges arguing that the ruling “risks a government that can interpret the law to suit its own ends, without scrutiny”, the majority ruling stated that “it is for the executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress — and not for us judges — to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation”.

The right to an effective remedy is recognised in all major international and regional human rights treaties. The UN Human Rights Committee has affirmed that this right can never be derogated from, even during times of national emergency. International law requires that remedies not only be available in law, but accessible and effective in practice. Victims are entitled among other things to equal and effective access to justice (including “effective judicial remedy”) regardless of who may ultimately be responsible for the violation; adequate, effective and prompt reparation for harm suffered; and access to relevant information concerning violations and reparation mechanisms. Full and effective reparation includes restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

In its May 2010 petition to the US Supreme Court urging it not to take the Arar case, the Department of Justice argued that the lawsuit implicates “significant national security concerns”, and judicial intervention would “call upon the courts to review sensitive intergovernmental communications, second-guess whether Syrian officials were credible enough for United States officials to rely on them, and assess the credibility of any information provided by foreign officials concerning [Maher Arar’s] likely treatment in Syria, as well as the motives and sincerity of the United States officials who concluded that [he] could be removed to Syria consistent with Article 3 of the [UN Convention against Torture]”. The Second Circuit had properly concluded, the government brief went on, that this litigation would interfere with foreign relations and the government’s ability to ensure national security.

Its litigation strategy to seek to block judicial remedy for human rights violations endured by such detainees leaves the impression that the protection of executive power and the promotion of immunity from real accountability to victims of human rights violations are being prioritized, just as they were under the previous administration. While far from satisfactory, now that it has successfully blocked judicial remedy for Maher Arar, there can no longer be any excuse for the total failure of US administrative and legislative authorities to take effective measures to meet its international obligations to victims of human rights violations for which the USA bears responsibility [In its brief to the US Supreme Court, the US administration asserted that the Court’s refusal to take the case would not leave “executive power unbounded”. It continued: “While the aggrieved party may have no private remedy for money damages, if the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance”]. The current situation, with Maher Arar remaining entirely without effective remedy or reparation from any US authority, is flagrantly inconsistent with, and a continuing violation of, US human rights obligations [By contrast, Maher Arar was provided by Canada with a judicial inquiry and ultimately a formal apology from the government and monetary compensation for the responsibility of Canadian authorities in relation to his case].

The occasion of the annual international day [in support of] victims of torture on 26 June would seem a particularly pertinent time for the USA to begin to end this remedy and accountability vacuum. It is now seven years since President Bush marked this date in 2003 with a statement that amounted to rank hypocrisy:

Notorious human rights abusers … 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 worldwide 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 … The suffering of torture victims must end, and the United States calls on all governments to assume this great mission.

Three months earlier, Khalid Sheikh Mohammed had been subjected in secret US custody 183 times to the torture technique known as water-boarding. The secret detention program had been authorized by President Bush.

Without a doubt, there has been a positive change in tone on human rights and engagement with the international community under the Obama administration. The fact that the CIA program such as it was under the Bush administration is now believed to have been ended, and the agency’s use of “enhanced” interrogation techniques stopped, is welcome. The fact is, however, there has been zero accountability and remedy for the violations, including crimes under international law, committed under the program.

Responding to the recent events in his case, Maher Arar has told Amnesty International of his view that: “This Supreme Court decision, along with lower court’s rulings, essentially gives the green light to the US administration to engage in torture without any fear of ever being prosecuted.” Similar to what the administration has said in other litigation, and what the White House has stated in its May 2010 National Security Strategy, the Justice Department’s brief to the Supreme Court on the Arar case asserted that the case did “not concern the propriety of torture or whether it should be ‘countenanced’ by the courts.” Torture, it said, “is flatly illegal and the government has repudiated it in the strongest terms … The President has stated unequivocally that the United States does not engage in torture”.

Amnesty International has welcomed the promises made by the Obama administration that it will not torture. This promise is not enough, however. The USA is obliged under international law not only to prevent those who act on its behalf from committing, participating in, tolerating, acquiescing in, or otherwise being responsible for any act of torture or other cruel, inhuman or degrading treatment, as defined under international law — as well as other human rights violations such as enforced disappearance, secret detention, and arbitrary detention — but to investigate and hold accountable those responsible for authorizing and carrying out such violations in the past, including by bringing those responsible for crimes under international law to justice.

In its National Security Strategy, the administration asserts that “We are working within the broader UN system and through regional mechanisms to strengthen human rights monitoring and enforcement mechanisms, so that individuals and countries are held accountable for their violation of international human rights norms.” The USA’s failure to ensure accountability and remedy for its own conduct is leaving its positive words on torture ringing somewhat hollow, as similar words rang hollow under the previous administration.

Time to adhere to the “rules of the road”

The USA must review the full range of its conduct in the counter-terrorism context to ensure that its human rights obligations are being met. The Guantánamo detentions have become mired in a domestic US political context in which over the short-term it may seem less costly to invoke concepts such as “national security” or “global war” to justify deep departures from the USA’s human rights commitments, than to confront and remedy the human rights violations of the past and present.

The USA should adhere to the “rules of the road” on human rights, not continue to undermine them via the distorting lens of its global “war” paradigm, under which domestic political considerations and sweeping and ever-growing national security arguments are being driven into a head-on collision with the universal principles of human rights, justice, and the rule of law.

Note: According to news reports today, the Obama administration will be released Mohammed Hassan Odaini soon. For further information about some of the themes and cases discussed in the Amnesty International report, see the following:

For Mohammed Hassan Odaini, see my articles, Why is a Yemeni Student in Guantánamo, Cleared on Three Occasions, Still Imprisoned? and Obama Thinks About Releasing Innocent Yemenis from Guantánamo, and for a comprehensive list of all the habeas cases so far decided, see Guantánamo Habeas Results: The Definitive List, which contains links to my detailed archive of articles and to the judges’ unclassified opinions. For my criticism of the Authorization for Use of Military Force, see Guantánamo and Habeas Corpus: 2 Years, 50 Cases, 36 Victories for the Prisoners. For the military commission charges against Obaidullah, see Guantánamo trials: another insignificant Afghan charged and Afghan Nobody Faces Trial by Military Commission. For the proposed trial of Khalid Sheikh Mohammed and others, and my criticism of the military commissions, see The Logic of the 9/11 Trials, The Madness of the Military Commissions, and for a response to the recent refusal of the Supreme Court to take Maher Arar’s case, see Obama, the Supreme Court and Maher Arar: No Accountability for Torture.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

UN Secretary-General and Torture Experts Issue Statements on International Day in Support of Victims of Torture

23 years ago, on June 26, 1987, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment came into force, and since its 11th anniversary, on June 26, 1998, it has been commemorated as the International Day in Support of Victims of Torture.

A long-cherished dream of those who opposed the use of torture under any circumstances, the Convention followed up on the prohibition against the use of torture in the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on December 10, 1948, which declared, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” 23 years ago, Article 2.2 of the Convention Against Torture made clear that the torture prohibition is absolute, declaring, “No exceptional circumstances whatsoever, 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.”

Torture, of course, has not been eradicated, despite the fact that 147 countries have ratified the Convention, and despite the absolute prohibition in Article 2.2, and some of its other provisions have proven particularly difficult for signatories to accept: for example, Article 3. 1, which states, “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture,” and the articles designed to ensure that anyone practicing torture will be held to account.

Below are two statements to mark the International Day in Support of Victims of Torture. The first is UN Secretary-General Ban Ki-moon’s message:

Torture is a crime under international law. The prohibition of torture is absolute and unambiguous. Torture cannot be justified under any circumstances whatsoever, whether during a state of war or in response to terrorism, political instability or any other public emergency.

And yet, torture is still practised or tolerated by many States. Impunity persists for the perpetrators. The victims continue to suffer.

The International Day in Support of Victims of Torture is an occasion to underscore the internationally recognized right of all men and women to live free from torture. It is an opportunity to reaffirm our collective commitment to prohibit torture and all cruel, inhuman and degrading treatment or punishment.

I urge all States that have not yet done so to ratify and honour their obligations under the Convention against Torture and the provisions of its Optional Protocol. I also appeal to all States to invite the Special Rapporteur on Torture to visit their prisons and detention facilities, and to allow full and unhindered access to those detained there.

In addition, only two additional ratifications are required for the entry into force of the International Convention for the Protection of all Persons from Enforced Disappearance. The Convention will reinforce the international legal framework to combat and prevent this heinous practice — which is clearly and historically linked with the practice of torture.  I urge those States which have not ratified the Convention to do so as soon as possible.

On this Day we also express our solidarity with millions of victims of torture, and reiterate the need for all States to provide justice and rehabilitation for them. I thank donors to the United Nations Voluntary Fund for Victims of Torture and commend the persistent efforts by many non-governmental organizations and individuals to alleviate the suffering of these victims.

On this International Day in Support of Victims of Torture, I call on States and people to do their utmost to rid the world of this cruel, degrading and illegal practice.

The following Joint Statement was made by four United Nations mechanisms involved in preventing torture and helping its victims — the United Nations Committee against Torture; the Subcommittee on Prevention of Torture; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; and the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture — who “have stated that despite a well-built international legal framework, torture prevails in many regions of the world and is often accompanied by an alarming degree of impunity”:

We are deeply concerned that torture continues to be widespread and that certain practices amounting to torture as well as to cruel, inhuman or degrading treatment or punishment were reinvigorated, in particular in the context of the so-called global war on terror after 11 September 2001. The prohibition against torture and other forms of inhumane treatment is absolute and cannot be derogated even under emergency situations.

States must take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under their jurisdiction. In addition they should ensure that no reason based on discrimination of any kind be used as justification for torture or inhumane treatment. The lack of criminalization of torture and inadequate sanctions are main factors contributing to impunity. We often see that in the few instances where perpetrators are held accountable they often receive sentences far below what is required by international law. In order to live up to their obligation to protect everyone subject to their jurisdiction from torture, States must ensure that all acts of torture are criminalized as offences in their domestic penal law and punishable with appropriate penalties that take into account their gravity.

Recent studies have shown that some States, invoking different types of emergencies, have been directly or indirectly involved in practices such as secret detention, disappearances, expulsion or extradition of individuals to countries where they were in danger of torture, and other unlawful treatment or punishment in violation of the Convention against Torture and other international human rights instruments and humanitarian law [PDF]. We are dismayed to see that in almost no recent cases have there been judicial investigations into such allegations; almost no one has been brought to justice; and most victims have never received any form of reparation, including rehabilitation or compensation.

Torture leaves indelible traces on the body and minds of the victims and reparation can almost never be complete. Often, the right to a remedy and reparation for victims of torture is non-existent or severely limited. Adequate reparation, tailored to the needs of the victim including compensation and rehabilitation, is rarely provided or entirely dependent on the limited resources of private entities and civil society organizations. In light of these concerns, we call upon all States to ensure that victims of torture and other form of cruel, inhuman or degrading treatment obtain full redress and urge them to adopt general guarantees of non-repetition including taking determined steps to fight impunity.

In this troublesome context, more than twenty years after its entry into force, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is still far from universal ratification. As of today, it has 147 States parties, of which only 64 States have made the declaration under article 22 recognizing the competence of the Committee against Torture to receive individual communications. We urge all States to become party to the Convention against Torture and make the declarations provided under article 22 of the Convention, on individual complaints, in order to maximize transparency and accountability in their fight against torture and its related impunity.

Four years after its entry into force, the Optional Protocol to the Convention against Torture has 51 State Parties. The Optional Protocol is a key instrument to prevent torture and ill-treatment by ensuring the establishment of independent and effective national preventive mechanisms empowered to visit places of detention. We therefore urge all States to ratify the Optional Protocol and thus to engage with the Subcommittee on Prevention of Torture. We further call upon those States Parties to the Optional Protocol that have not yet done so to establish the National Preventive Mechanisms to thus live up to their obligations related to the prevention of torture and ill-treatment.

On this International Day in Support of Victims of Torture, we pay tribute to the Governments, civil society organizations and individuals engaged in activities aimed at preventing torture, punishing it and ensuring that all victims obtain redress and adequate compensation, including the means for as full a rehabilitation as possible. We express our gratitude to all donors to the United Nations Voluntary Fund for Victims of Torture, which currently supports the work of over 200 organizations in more than 60 countries, and hope that contributions to the Fund will continue to increase to make it possible for victims of torture and members of their families to receive the assistance they need. We call on all States, in particular those which have been found to be responsible for widespread or systematic practices of torture, to contribute to the Voluntary Fund as part of a universal commitment for the rehabilitation of torture victims and their families.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

Note: For further information about the UN’s most recent attempts to counter the practice of secret detention –- one of the elements of the derogation from the Convention Against Torture that became prominent “in the context of the so-called global war on terror after 11 September 2001” — see my articles about the secret detention report — UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” and UN Human Rights Council Discusses Secret Detention Report — and my articles cross-posting the sections of the report dealing with US practices since September 11, 2001: UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons, UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq, and UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record.

The Torture of Abu Zubaydah: The Complaint Filed Against James Mitchell for Ethical Violations

To complement my recent article, “Abu Zubaydah and the Case Against Torture Architect James Mitchell,” analyzing the complaint filed with the Texas State Board of Examiners of Psychologists regarding ethical violations by Dr. James Elmer Mitchell, one of the architects of the Bush administration’s torture program, I’m reproducing below the full complaint, primarily, as I explained in my article, “because of its detailed explanations of Mitchell’s unprofessional activities,” but also because it “covers extensively what was actually involved in the torture of Abu Zubaydah,” beyond the short summary I cited at the start of my article. A PDF of the complaint is here. Please note that I have included hyperlinks and references where possible, but see the original for the full footnotes.

TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS
COMPLAINT: DR. JAMES ELMER MITCHELL (LICENSE NO. 23564)

Conduct being reported: Ethical violations, Provision of services beyond expertise (see attached), Violation of multiple standards.

In August 2002, at a secret prison in Thailand, a psychologist stood over a prisoner. The psychologist was James Elmer Mitchell; the prisoner was Abu Zubaydah. Zubaydah had been in custody since his arrest in Pakistan March 28, 2002. Dr. Mitchell took over his interrogation shortly thereafter. He had ordered that Zubaydah be chained to a chair for weeks on end; that he be whipped by the neck into concrete walls; that he be stuffed into a small, black box and left for hours; that he be hung naked from the ceiling; that he be kept awake for 11 consecutive days, and sprayed with cold water if he dozed. But the torture designed by Dr. Mitchell was about to pass to another level. It was time to implement the final stage of Dr. Mitchell’s program [International Committee of the Red Cross, ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, February 2007 (PDF), pp. 28-31; Central Intelligence Agency Inspector, Special Review: Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), 7 May 2004 (PDF), p. 15; Jason Leopold, Truthout, Zubaydah’s Torture, Detention Subject of Senate Inquiry].

Abu Zubaydah lay strapped to a gurney specially designed to maximize his suffering. His feet were above his head, just as Dr. Mitchell had ordered. His hands, arms, legs, chest, and head were restrained by heavy leather straps. As Zubaydah lay helpless, Mitchell and his subordinates placed a black cloth over his face and began to pour water onto the cloth. Rivers of water ran up Zubaydah’s nose and down his throat. He could not breathe. Panic gripped him as he began to drown. And when Mitchell sensed that Zubaydah dangled on the precipice between life and death, he ordered that the board be raised. Zubaydah expelled the water in a violent, racking spasm of coughing, gurgling and gasping. But before Zubaydah could catch his breath, Dr. Mitchell repeated the experiment. Then he did it again. And again. According to the United States Government, Abu Zubaydah was water-boarded 83 times in August 2002 alone.

Dr. James Elmer Mitchell is currently a psychologist licensed in the state of Texas.

The road to torture in a Thai prison began six months earlier. After 9/11, Dr. Mitchell had approached the U.S. Government with a proposition. Though he had never conducted an interrogation and had no training as an interrogator, and though he had no expertise in al-Qaeda and no familiarity with the organization, and though he did not speak Arabic and had no training in radical Islam, Mitchell nonetheless said he could design and implement an interrogation plan for alleged al-Qaeda suspects. Mitchell had taught U.S. soldiers how to resist unlawful interrogations, and now offered to reverse-engineer those principles and transform them into a set of “enhanced interrogation techniques.” The C.I.A. took Mitchell at his word, and paid him as much as $2,000 per day, plus expenses, tax free.

The U.S. Government has now concluded that Dr. Mitchell misrepresented his qualifications, violated his professional duty to persons in his care, and acted without a legitimate scientific basis. The C.I.A Office of Medical Services (the OMS), with which Dr. Mitchell did not consult during either the design or implementation of the program, concluded that Dr. Mitchell misrepresented his qualifications and that “there was no a priori reason to believe [Dr. Mitchell’s program] was either efficacious or medically safe.” The OMS has also concluded there was no scientific basis to believe that the interrogation plan would produce reliable intelligence [CIA IG Report, pp. 21-22].

Colonel Steve Kleinman, an interrogator with years of experience, testified to the U.S. Senate that Mitchell was “stepping out of [his] area of expertise.” The U.S. Armed Services Senate Committee, which investigated the issue, found that Dr. Mitchell, and his colleague Dr. Bruce Jessen, were “neither trained interrogators nor are they qualified to be.” Michael Rolince, former section chief of the FBI’s International Terrorism Operations, described the methods employed by Drs. Mitchell and Jessen as “voodoo science.” The CIA terminated its contract with Dr. Mitchell in the spring of 2009. [U.S. Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody, 2008 (PDF), p. xiii; Amanda Witherell, Project Censored, MISSOULA INDEP., Vol. 19; Issue 41 (Oct. 9, 2008); Leon E. Panetta, Message from the Director: Interrogation Policy and Contracts, Central Intelligence Agency, Apr. 9, 2009].

The psychological community has roundly condemned Dr. Mitchell. The Ethics Committee of the American Psychological Association (APA), for instance, issued a statement on June 19, 2009, stating that “[p]sychologists are absolutely prohibited from knowingly planning, designing, participating in or assisting in the use of [mock executions, water-boarding or any other form of simulated drowning, physical assault including slapping or shaking, exposure to extreme heat or cold, threats of harm or death] at any time and may not enlist others to employ these techniques in order to circumvent this resolution’s prohibition.” All of these techniques, of course, were designed and employed by Dr. Mitchell, who has never acknowledged the impropriety of his role or disavowed any of his actions. Dr. Mitchell remains licensed as a psychologist in the state of Texas.

Dr. Mitchell has sullied his profession by violating the standards demanded by the Psychologists’ Licensing Act and the Board’s Rules of Practice. His transgressions fall into three categories:

  • First, to achieve his ultimate plan of implementing a brutal interrogation and torture regime, Dr. Mitchell misrepresented his professional qualifications and experience to the Central Intelligence Agency. He also placed his own career and financial aspirations above the safety of others.
  • Second, Dr. Mitchell designed this torture regime only by ignoring the complete lack of a scientific basis for the regime’s safety and — assuming its safety — its effectiveness. In doing so, he failed to take reasonable steps to ensure the safety of others.
  • Third, and most ominously, Dr. Mitchell himself tortured prisoners held in U.S. custody and directly supervised others who engaged in torture at his direction.

The Board’s mission is to “protect the public by ensuring that psychological services … are provided by qualified and competent practitioners who adhere to established professional Standards.” Dr. Mitchell’s behavior appears to fail to meet this standard.

Dr. Mitchell’s education and experience provided him no reasonable basis to believe he could design and implement an interrogation program. After joining the U.S. Air Force in 1974, Dr. Mitchell earned a Master’s of Science in Counseling from the University of Alaska in 1981. He wrote his thesis on “The Effects of Induced Elation and Depression on Interpersonal Problem Solving Efficiency.” In 1986, he received a Ph.D. from the University of South Florida, where he wrote a dissertation on “The Effectiveness of a High Potassium/ Moderate Sodium Restriction Diet and Aerobic Exercise as Interventions for Borderline Hypertension.” None of Mitchell’s academic research involved interrogations, let alone the mechanisms for designing and implementing a safe and effective interrogation program.

Following his formal education, Dr. Mitchell began his career as a psychologist at Fairchild Air Force Base in Spokane, Washington, in 1986.29 By 1988, he had become a SERE Psychologist. SERE is an acronym for “Survival, Evasion, Resistance, and Escape.” The SERE training program is part of the Department of Defense Joint Personnel Recovery Agency (JPRA). SERE students are taught how to survive in various terrain, evade and endure captivity, resist interrogations, and conduct themselves to prevent harm to themselves and fellow prisoners of war. The program is designed to train soldiers at risk of capture and interrogation to defend and resist against torture. The U.S. Army, Navy, and Air Force have each developed their own version of the SERE program.

SERE attempts to train American soldiers how to resist psychological pressure from an enemy who engages in unlawful interrogations. The SERE curriculum is classified, but SERE graduates and instructors have disclosed some of its methods. Prisoners are held in a mock prison camp, where “guards” deprive them of food and sleep and subject them to repeated coercive interrogations. By May 2001, Dr. Mitchell had retired from the Air Force’s SERE program. Later, he opened a private consulting company called KnowledgeWorks, L.L.C.

But after the September 11 attacks, Dr. Mitchell saw an opportunity to sell his independent consulting services to the CIA. The CIA hired him to review a document known as the “Manchester Manual,” which described resistance training given to some members of al Qaeda. Dr. Mitchell contacted his former colleague, Dr. John (Bruce) Jessen, for assistance. Though they had no expertise or familiarity with al-Qaeda, Mitchell and Jessen wrote a paper titled “Recognizing and Developing Countermeasures to Al-Qa’ida Resistance to Interrogation Techniques: A Resistance Training Perspective.” But Mitchell did not content himself with claiming a false expertise in al-Qaeda’s resistance training. Though he had no qualifications as an interrogator, Mitchell (with Jessen) also marketed himself to the CIA as an expert in conducting counter-terrorism interrogations of alleged Islamic fundamentalists. On their own initiative, they “developed a list of new and more aggressive EITs [enhanced interrogation techniques] that they recommended for use in interrogations.” They “reverse-engineered” SERE by recommending that techniques previously applied only in mock, controlled settings now be used in real-world interrogations.  Among others, the EITS included the facial hold, facial slap, cramped confinement, confinement with insects, wall standing, stress positions, sleep deprivation, waterboarding, and sexual humiliation [CIA IG Report, p. 13].

Air Force Colonel Steve Kleinman, a former colleague at SERE who was also a career military interrogator with training in intelligence, stated that when Dr. Mitchell and Dr. Jessen became involved in CIA interrogations, “that was their first step into the world of intelligence … Everything else was role-play.” “What [Dr. Mitchell and Dr. Jessen] failed to understand was they were stepping out of their area of expertise,” yet they nonetheless promoted themselves as offensive interrogation experts despite the “disconnect between the SERE model, a resistance model, and an actual interrogation for intelligence purposes.”

By actively misrepresenting his professional qualifications, Mitchell violated the Psychologists’ Licensing Act, which prohibits a Texas-licensed psychologist from “engag[ing] in fraud or deceit in connection with services provided as a psychologist.” Moreover, the Texas State Board of Examiners of Psychologists’ Rules of Practice state: “Licensees provide only services for which they have the education, skills, and training to perform competently.” Dr. Mitchell violated the Board’s Rules of Practice governing competency when he went beyond his limited background to develop and implement interrogation techniques. Moreover, in extending his independent contract with the CIA, Dr. Mitchell lacked professional objectivity by placing his own career and financial aspirations above the safety of others.

In recommending a new and untested interrogation program of his own design to the CIA, Dr. Mitchell also violated the Board’s Rule of Practice requiring licensees to rely on scientifically and professionally derived knowledge when making professional judgments. Moreover, he failed to take reasonable steps to ensure the safety of others involved in this emerging field of psychology and interrogation. To understand the extent to which Dr. Mitchell violated these Rules, it is essential to understand the stark differences between SERE resistance training and the real-world interrogation regime that Dr. Mitchell developed and implemented as a CIA contractor.

In testifying before the Senate Committee on Armed Services [PDF], Colonel Steve Kleinman summarized several of the key differences between SERE mock interrogation techniques and real-world interrogations:

To the non-intelligence officer, the transfer of SERE methods from the training environment to real-world operations seemed a logical option. Several critical factors, however, were overlooked. First, many of the methods used in SERE training are based on what was once known as the Communist Interrogation Model, a system designed to physically and psychologically debilitate a detainee as a means of gaining compliance. Second, that model‘s primary objective was to compel a prisoner to generate propaganda not intelligence. Third, it was expressly designed to mirror a program that employed methods of interrogation considered by the West to be violations of the Geneva Conventions.

The problems with employing SERE techniques in the interrogation of detainees do not stop there. I want to emphasize that survival instructors are some of the most dedicated professionals in Armed Forces. Their tireless work supports a noble mission: to prepare others to return with honor. I would be remiss, though, if I did not make one point abundantly clear: survival instructors are not interrogators. While interrogation and teaching resistance to interrogation have much in common, they are nonetheless profoundly different activities.

  • Survival instructors operate in a domestic training environment and share both a language and culture with the students they teach. In contrast, interrogators are involved in worldwide operations and interact with foreign nationals across an often substantial cultural and linguistic divide.
  • If questions arise about the student‘s veracity during role-play, a survival instructor need only call the student‘s unit of assignment to verify the information. Clearly, this is not an option for an interrogator for whom detecting deception is a critical skill.
  • While interrogation role-play is limited in duration, frequency, and scope, interrogations of custodial detainees may last hours and continue over a span of months.
  • The survival instructor’s focus is not on information but the performance of the student while the interrogator must doggedly pursue — and record — every detail of intelligence information a detainee possesses.

There are other differences between SERE and real-world interrogations. As the Senate Armed Services Committee observed, “SERE instructors are not selected for their roles based on language skills, intelligence training, or expertise in eliciting information.” The Committee’s Report continues:

Typically, those who play the part of interrogators in SERE school neither are trained interrogators nor are they qualified to be. These role players are not trained to obtain reliable intelligence information from detainees. Their job is to train our personnel to resist providing reliable information to our enemies. As the Deputy Commander for the Joint Forces Command (JFCOM), JPRA’s higher headquarters, put it: “the expertise of JPRA lies in training personnel how to respond and resist interrogations — not in how to conduct interrogations.”

Furthermore, SERE school instructors receive extensive psychological testing prior to being hired, and they must undergo a year-long training process, annual psychological screening, and extensive monitoring and oversight during practical exercises in order to “prevent instructor behavioral drift, which if left unmonitored, could lead to abuse of students.” At SERE schools,

[i]nstructors are constantly monitored by other JPRA personnel, command staff, and SERE psychologists to minimize the potential for students to be injured. These oversight mechanisms are designed to ensure that SERE instructors are complying with operating instructions and to check for signs that instructors do not suffer from moral disengagement (e.g., by becoming too absorbed in their roles as interrogators and starting to view U.S. military SERE students as prisoners or detainees). These oversight mechanisms are also designed to watch students for “indications that they are not coping well with training tasks, provide corrective interventions with them before they become overwhelmed, and if need be, re-motivate students who have become overwhelmed to enable them to succeed” [Senate Report, pp. xiii, 5].

In contrast to the year-long training that SERE school instructors receive, the CIA initiated a two-week “Interrogator Training Course” in November 2002 designed to “train, qualify, and certify individuals as Agency interrogators.” This program included one week of classroom instruction and one week of “hands on” training [CIA IG Report, p. 31].

Another crucial difference between SERE and real-world interrogation is the level of controls employed to reduce the risk of physical and psychological harm to students during training, but absent from real-world interrogation settings. The Senate Armed Services Report states,

SERE school techniques are designed to simulate abusive tactics used by our enemies. There are fundamental differences between a SERE school exercise and a real world interrogation. At SERE school, students are subject to an extensive medical and psychological pre-screening prior to being subjected to physical and psychological pressures. The schools impose strict limits on the frequency, duration, and/or intensity of certain techniques. Psychologists are present throughout SERE training to intervene should the need arise and to help students cope with associated stress. And SERE school is voluntary; students are even given a special phrase they can use to immediately stop the techniques from being used against them.

The SERE schools, including the Air Force SERE school where Dr. Mitchell worked, employ strict controls to reduce the risk of physical and psychological harm to students during training. These controls are absent from real world interrogations.

Moreover, the use of physical pressures differs between SERE school training and real world interrogations regarding the use of physical pressures:

Because of the danger involved, very few SERE instructors are allowed to actually use physical pressures. It is extremely easy for U.S. Army instructors, training U. S. Army soldiers, to get out of hand, and to injure students. The training, from the point of the student, appears to be chaotic and out of control. In reality, everything that is occurring [in SERE school] is very carefully monitored and paced; no one is acting on their own during training. Even with all these safeguards, injuries and accidents do happen. The risk with real detainees is increased exponentially [Senate Report, pp. xiii, xix, 5-6].

As Dr. Mitchell himself acknowledged, “the Agency’s use of the technique differed from that used in SERE training” because “the Agency’s technique … is ‘for real’ and is more poignant and convincing.” For example, the Inspector General’s report explains that the waterboarding method used in CIA black sites was more brutal than the method used in SERE schools and described in the Office of Legal Counsel memorandum because the black site method used greater volumes of water and more obstructed breathing. “At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passage. By contrast, the Agency‘s interrogator … continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose.” Moreover, whereas at the SERE school “trainees usually have only a single exposure to this [waterboard] technique, and never more than two,” individuals interrogated in the real world post 9/11 were waterboarded dozens, and sometimes hundreds, of times. Dr. Mitchell intentionally ignored these critical differences of both environment and methodology in promoting his reverse-engineered SERE program to the CIA, as well as when personally applying the harsher waterboard techniques to detainees. Even with the differences between the programs ignored, the U.S. Air Force and U.S. Army abandoned the waterboarding program at its SERE school because of its dramatic and dangerous effect on the students to whom it was applied. In sum, the SERE training environment simply cannot be analogized to the real-world interrogation setting [CIA Report, pp. 13, 22, 29, 37, Appendix F. Also see testimony to the Senate Armed Services Committee (PDF) by Dr. Jerald Ogrisseg, JPRA’s SERE Research Psychologist and a former Air Force SERE school psychologist, who identified a total of eight significant differences between students enrolled in a SERE course undergoing a mock interrogation and a real-world interrogation setting: 1. Previous level of functioning and demographic factors; 2. Purpose of the experience; 3. Risk management oversight functions; 4. Propensity for moral disengagement; 5. Psychological and operational debriefings; 6.”Voluntary’” nature of training; 7. Limited duration of the experience; 8. Adjustment to the experience and follow-on support].

Dr. Mitchell neither consulted nor involved the CIA’s Office of Medical Services (the OMS) prior to selling the program to the CIA. The OMS, in a subsequent review of the CIA’s adoption of Dr. Mitchell’s interrogation program, concluded that Dr. Mitchell did not have the expertise to develop an interrogation plan and that he misrepresented the medical safety of the program to the CIA and the Department of Justice. Further, OMS concluded that there was no proof, nor was there any reason to believe, that the EITs proposed by Dr. Mitchell would produce any sort of valuable intelligence from detainees as a form of interrogation [CIA IG Report, pp. 21-22]. There simply was no scientific support for Dr. Mitchell’s recommendations. At no time prior to implementing these programs did Dr. Mitchell conduct experiments, publish research about offensive interrogation techniques, or subject his theories to peer-review in a publicly-available forum. At no time did Mitchell establish that his techniques were safe and — if safe — whether they were effective in eliciting truth. One investigative report explained, “In truth, many did not consider Mitchell and Jessen to be scientists. They possessed no data about the impact of [SERE] training on the human psyche, say former associates. Nor were they ‘operational psychologists,’ like the profilers who work for law enforcement … But they wanted to be, according to several former colleagues.” Dr. Mitchell’s failure to verify his interrogation regime using scientifically sound, empirical methods therefore constitutes direct violations of the Board’s Rule of Practice requiring licensees to rely on scientifically and professionally derived knowledge when making professional judgments and the Rule requiring licensees to take reasonable steps to ensure the safety of others involved in emerging fields of study.

Dr. Mitchell tortured prisoners in U.S. custody. The first was Abu Zubaydah, whose torture is worth recounting in detail. Abu Zubaydah, a Palestinian national, was the first detainee captured after 9/11 who was believed to be a high-ranking member of al-Qaeda. Abu Zubaydah was also the first person to be subjected to the new regime of abusive interrogation that Mitchell (with Jessen) designed and implemented. The CIA Inspector General Report states that Abu Zubaydah’s capture “accelerated the CIA‘s development of an interrogation program” [CIA IG Report, pp. 2-3, 12]. According to former CIA Director George Tenet, once Abu Zubaydah was in custody, the CIA “got into holding and interrogating high-value detainees … in a serious way” [Senate Report, p. 16]. The CIA’s lack of experience in interrogation may have made the agency susceptible to Dr. Mitchell’s claims about the efficacy of the methods. Whatever the explanation, Abu Zubaydah’s interrogation was used as an opportunity to test a set of experimental techniques, devised by Dr. Mitchell, that the United States had never before approved for use on its captives. [Regarding the possibility that the CIA was susceptible to Mitchell’s methods, this interpretation is suggested by the congressional testimony of Ali Soufan, an FBI interrogator who initially questioned Abu Zubaydah: “[T]he CIA specializes in collecting, analyzing, and interpreting intelligence. The FBI, on the other hand, has a trained investigative branch. Until that point, we were complementing each other’s expertise, until the imposition of the ‘enhanced methods.’ As a result people ended up doing what they were not trained to do.” Statement of Ali Soufan, Committee on the Judiciary, United States Senate, May 13, 2009 (PDF)].

On March 28, 2002, Abu Zubaydah was captured at a home in Pakistan by combined Pakistani and CIA forces. He was subsequently detained in secret CIA black sites located around the world, reportedly including facilities in Thailand, Afghanistan, Poland, and elsewhere. In September 2006, Zubaydah was transferred to the Guantánamo Bay prison, where he remains in U.S. custody. Abu Zubaydah was once described as al-Qaeda’s “chief of operations” and a “trusted associate” of Osama bin Laden. The United States, however, now accepts that these accusations are untrue. The United States Government no longer alleges that Abu Zubaydah was a member of al-Qaeda. The United States no longer alleges that Abu Zubaydah was an associate of bin Laden or a deputy in his organization. The United States no longer alleges that Zubaydah had any involvement in the attacks of 9/11, or that he had any advance knowledge that the attacks would take place. The United States no longer alleges that Zubaydah had any involvement in any al-Qaeda attacks on the United States or its interests, at home or abroad, and no longer alleges that Zubaydah knew about any other attacks that may have been planned by al-Qaeda at the time of his arrest March 28, 2002. Indeed, according to published reports, “within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida [Zubaydah].” Despite the Government’s former claims about Abu Zubaydah, he has never been charged with a crime, either in a military commission or a civilian court.

During the raid that led to his capture, Abu Zubaydah was shot in the groin, thigh, and stomach and suffered “severe wounds.” A medical team determined that he would die if not treated in a hospital. Abu Zubaydah was taken to a hospital, first in Pakistan and then at a black site in Thailand, where he spent several weeks being treated and where his initial questioning began. Zubaydah was initially interrogated using “non-aggressive, non-physical” techniques. FBI agents questioned him and reportedly used traditional methods based on the Army Field Manual. According to one of the FBI interrogators who conducted these sessions, Zubaydah was cooperative.

Soon, however, a CIA Counterterrorism Team arrived at the black site and assumed control over the interrogation. The CIA team included an outside contractor “who was instructing them on how they should conduct the interrogations.” This contractor was Dr. Mitchell. Deeming the FBI methods to be insufficient, Dr. Mitchell said they “needed to diminish [Abu Zubaydah’s] capacity to resist.” “Immediately, on the instructions of the contractor, harsh techniques were introduced, starting with nudity.” As time progressed, Mitchell moved “further along the force continuum, introducing loud noise and then temperature manipulation” [Department of Justice Inspector General, A Review of the FBI’s Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan and Iraq, May 2008 (PDF), pp. 67-8; Soufan Senate testimony; Senate Report, p. 17].

Abu Zubaydah was subsequently kept naked for between one and a half to two months and his clothes were provided or removed according to how cooperative his interrogators perceived him to be. He was also systematically deprived of sleep for a period of two to three weeks by the combined use of painful shackling, loud music, cold temperatures, and being doused with water. The cell was kept very cold by the use of air-conditioning and very loud “shouting” music was constantly playing on an approximately fifteen minute repeat loop twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise. As part of the regime of total control designed to strip detainees of their autonomy, Abu Zubaydah was denied solid foods. He was fed only high-calorie liquids which provided him with minimal sustenance and left him constantly hungry [ICRC Report, pp. 14, 15, 18].

According to one of the FBI agents who observed the CIA‘s harsh methods with dismay, Mitchell “insisted on stepping up the notches of his experiment,” and devised the idea of placing Abu Zubaydah in confinement boxes. One box was too narrow to allow him to sit down; the other was so short that instead of standing he reportedly “had to double up his limbs in a fetal position.” The coffin-like boxes were black, both inside and out, and covered with towels, possibly in an effort to constrict the flow of air inside. While the CIA was inflicting escalating levels of abuse on Abu Zubaydah, he was still recovering from his gunshot wounds. In fact, the interrogators were so worried that Abu Zubaydah might die that they videotaped his interrogations in an attempt to protect themselves from potential liability. The CIA later destroyed these videotapes [Soufan Senate testimony; ICRC Report, p. 14; CIA IG Report, pp. 13, 36-37].

As part of his mistreatment, Zubaydah was slammed directly into hard concrete walls (only later covered by a plywood sheet), with a thick collar placed around his neck that was presumably intended to protect him from additional life-threatening injury. He was also forced to stand with his wrists shackled to a bar or hook in the ceiling above his head, and with his feet shackled to an eye bolt in the floor, for more than 40 hours. This is widely regarded as one of the most painful physical torture techniques. As described by the Red Cross, “prisoners subjected to this method are made to stand naked, held with the arms extended and chained above the head … for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves” [ICRC Report, pp. 8, 11-12].

The infliction of this stress position contributed to the death of one detainee in the internment facility at Bagram Air Base [for a report on Dilawar’s death, see Senate Report, pp. 151-2]. For Abu Zubaydah, this stress-position technique was often combined with the “cold cell” technique, so that he was left to stand naked and repeatedly doused with cold water in a cell kept near 50 degrees Fahrenheit.

Mitchell and Jessen also worked to identify Abu Zubaydah’s phobias. After discovering an especially vehement phobia that Abu Zubaydah suffered from, the psychologists devised a scheme to terrorize Abu Zubaydah with this fear: “You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him” [2nd Bybee/Yoo memo, August 1, 2002 (PDF), p. 3]. As many reporters have noted, this technique is reminiscent of an incident in George Orwell‘s novel Nineteen Eighty-Four, in which the fictional government terrorizes the protagonist by exploiting his intense fear of rats.

Finally, Zubaydah was waterboarded at least 83 times in August 2002, usually twice per session and sometimes three times in a single session [CIA IG Report, p. 36; ICRC Report, p. 10]. The Red Cross report contains Abu Zubaydah’s own description of his waterboarding. His account describes how waterboarding was used, to devastating effect, in combination with the other abusive techniques described above:

During these torture sessions many guards were present, plus two interrogators who did the actual beating, still asking questions, while the main interrogator left to return after the beating was over. After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed.  I don‘t know how long I remained in the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die …

I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me. I remained in the box for several hours, maybe overnight. I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before …

This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation.

During that week I was not given any solid food … My head and beard were shaved everyday.

I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.

I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people [ICRC Report, p. 30].

Not surprisingly, the effects of the interrogation program are deep and long-lasting. Abu Zubaydah reports, “Since then I still lose control of my urine when under stress.”

The Red Cross has concluded that many of the techniques inflicted upon Abu Zubaydah — whether used singly or in combination — constitute torture. Others constitute cruel, inhuman, or degrading treatment. The Red Cross has also stated: “The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment constituted a gross breach of medical ethics and, in some cases, amounted to participation in torture and/or cruel, inhuman or degrading treatment” [ICRC Report, pp. 24, 26-7].

Regardless of what legal categories these techniques fall within, one conclusion is clear: a psychologist who helps inflict such cruel and shocking abuse on a defenseless human being would appear to have violated basic standards of conduct of the profession. Dr. Mitchell not only enabled and participated in Abu Zubaydah’s torment, he also personally designed the abusive and degrading techniques to which Zubaydah was subjected.

In 2008, the American Psychological Association dropped its certification of Dr. Mitchell‘s company, KnowledgeWorks. The Ethics Committee of the American Psychological Association (APA) on February 22, 2008 issued an Amendment to their Resolution Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and Its Application to Individuals Defined in the United States Code as “Enemy Combatants.” In this statement, the APA stated that “[p]sychologists are absolutely prohibited from knowingly planning, designing, participating in or assisting in the use of all condemned techniques at any time and may not enlist others to employ these techniques in order to circumvent this resolution’s prohibition” and set forth the following description of specific actions that constitute torture:

[M]ock executions; water-boarding or any other form of simulated drowning or suffocation; sexual humiliation; rape; cultural or religious humiliation; exploitation of fears, phobias or psychopathology; induced hypothermia; the use of psychotropic drugs or mind-altering substances; hooding; forced nakedness; stress positions; the use of dogs to threaten or intimidate; physical assault including slapping or shaking; exposure to extreme heat or cold; threats of harm or death; isolation; sensory deprivation and over-stimulation; sleep deprivation; or the threatened use of any of the above techniques to an individual or to members of an individual’s family.

Dr. Mitchell is not an APA member.

Discussing Dr. Mitchell and Dr. Jessen, Colonel Kleinman, an Air Force Reserve Colonel and expert in human-intelligence operations, found it astonishing that the CIA “chose two clinical psychologists who had no intelligence background whatsoever, who had never conducted an interrogation … to do something that had never been proven in the real world.” Michael Rolince, former section chief of the FBI’s International Terrorism Operations, described the methods employed by Dr. Mitchell and Dr. Jessen as “voodoo science.” Speaking of Dr. Mitchell and Dr. Jessen, Steve Kleinman has stated, “I think they have caused more harm to American national security than they‘ll ever understand.”

Dr. Mitchell repeatedly failed to abide by the standards of the Psychologists Licensing Act (the Act) and the Rules promulgated by the Board under the Act (the Board Rules). He violated the Board Rules governing competency, professional objectivity, basis for scientific and professional judgments, duties concerning emerging areas of psychology, professional supervision, improper sexual conduct and exploitation of authority, research without informed consent, evaluation, assessment, and testing of a human subject without informed consent, as well as the Act‘s prohibition against fraud and deceit in connection with psychological services, and the Act‘s prohibition against violations of Chapter 81 of the Civil Practice and Remedies Code for sexual exploitation by a mental health provider.

REQUEST FOR BOARD ACTION

I convey these observations and opinions to the Board not only as a citizen, but in my role as its licensee, mindful that I “must report conduct by a licensee that appears to involve harm or the potential for harm to any individual, or a violation of Board rule, a state law or federal law.” I request Board review of this matter and appropriate action.

Jim L. H. Cox, PhD., Helotes, Texas, assisted by Dicky Grigg, Spivey & Grigg, L.L.P., Austin, Texas and Joseph Margulies, Clinical Professor of Law, Roderick MacArthur Justice Center, Northwestern University School of Law, Chicago, IL.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Human Rights Council Discusses Secret Detention Report (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons (June 2010), UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq (June 2010), UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (June 2010). Also see the extensive archive of articles about the Military Commissions.

Abu Zubaydah and the Case Against Torture Architect James Mitchell

Attempts to call to accountability any of the architects of the Bush administration’s torture program have so far been depressingly unsuccessful. First, any hopes that President Obama would lead the way were dashed when, even before taking office, the President-Elect declared “a belief that we need to look forward as opposed to looking backwards.” Then, in January this year, the best hope to date — the final report of a four-year internal investigation into the Justice Department lawyers who wrote the “torture memos” in 2002 and 2003 that purported to redefine torture so that it could be practiced by the CIA, and later by the US military — was shattered when a senior Justice Department official was allowed to override the report’s damning conclusions, declaring that, instead of facing disciplinary measures for “professional misconduct,” the men in question — John Yoo, now a professor at Berkeley, and Jay S. Bybee, now a judge in the Ninth Circuit Court of Appeals — had only exercised “poor judgment.”

The actions of that official, David Margolis, were disgraceful, because bending the law out of shape in an attempt to justify the use of torture is clearly illegal, and is particularly distressing when the lawyers involved were working for the Office of Legal Counsel, the department within the Justice Department that is obliged to render impartial legal advice to the Executive branch. The report’s authors made it clear that Yoo “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice,” and that Bybee “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

However, they also indicated that Yoo and Bybee were not acting alone, as, for example, when they noted that they “found evidence” that the men “tailored their analysis to reach the result desired by the client” — in other words, former Vice President Dick Cheney, who is mentioned as putting “great pressure” on the OLC regarding three revised memos defending the use of torture, which were issued in May 2005 by Acting Assistant Attorney General Stephen Bradbury (who largely escaped censure in the report), and Cheney’s Legal Counsel, David Addington, and White House Deputy Counsel Tim Flanigan, who are mentioned in relation to the original “torture memos” of August 1, 2002. Unsurprisingly, these men were key players in what Philippe Sands (in his book Torture Team) identified as a “War Council” of lawyers who met regularly to plan and implement the legal strategies they wanted for the “War on Terror” — largely without any outside consultation — which consisted of just six men: Addington, Flanigan, Yoo, White House Counsel Alberto Gonzales, William J. Haynes II, the Pentagon’s General Counsel, and his deputy, Daniel Dell’Orto.

The complaint against Dr. James Mitchell

Last Wednesday, however, a new front in the search for accountability opened up, when Texan psychologist Jim L.H. Cox, Ph.D., assisted by Dicky Grigg, a lawyer in Austin, Texas, and Joe Margulies of Northwestern University School of Law in Chicago (who has been involved in the Guantánamo litigation since the prison opened in January 2002) filed a complaint to the Texas State Board of Examiners of Psychologists regarding another architect of the torture program, James Elmer Mitchell (PDF).

The complaint, which accuses Mitchell of numerous grave violations of his duties as a practicing psychologist, ought to be explosive, because Mitchell, along with a colleague, John “Bruce” Jessen, devised the horrendous experimental program that was used on Zubaydah, after his capture in Pakistan on March 28, 2002, and his subsequent rendition to a secret CIA facility in Thailand, which, on August 1, 2002, was ostensibly approved by John Yoo and Jay S. Bybee in their “torture memos.” Explaining Mitchell’s role in Zubaydah’s torture, the complaint stated:

[Mitchell] ordered that Zubaydah be chained to a chair for weeks on end; that he be whipped by the neck into concrete walls; that he be stuffed into a small, black box and left for hours; that he be hung naked from the ceiling; that he be kept awake for 11 consecutive days, and sprayed with cold water if he dozed. But the torture designed by Dr. Mitchell was about to pass to another level. It was time to implement the final stage of Dr. Mitchell’s program.

Abu Zubaydah lay strapped to a gurney specially designed to maximize his suffering. His feet were above his head, just as Dr. Mitchell had ordered. His hands, arms, legs, chest, and head were restrained by heavy leather straps. As Zubaydah lay helpless, Mitchell and his subordinates placed a black cloth over his face and began to pour water onto the cloth. Rivers of water ran up Zubaydah’s nose and down his throat. He could not breathe. Panic gripped him as he began to drown. And when Mitchell sensed that Zubaydah dangled on the precipice between life and death, he ordered that the board be raised. Zubaydah expelled the water in a violent, racking spasm of coughing, gurgling and gasping. But before Zubaydah could catch his breath, Dr. Mitchell repeated the experiment. Then he did it again. And again. According to the United States Government, Abu Zubaydah was waterboarded 83 times in August 2002 alone.

Mitchell’s purported expertise in interrogations came from his involvement as a psychologist in the US Air Force’s SERE program (Survival, Evasion, Resistance and Escape). Similar programs are run by the Army and the Navy, and, as the Senate Armed Services Committee explained in a damning report on the abuse of detainees, issued in December 2008 (PDF), they involve teaching US personnel “to withstand interrogation techniques considered illegal under the Geneva Conventions,” which are “based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions.” As the Committee proceeded to explain, the techniques used include “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures.” In some circumstances, they also include waterboarding.

How the torture program was developed

James Mitchell retired from the SERE program in May 2001, after 13 years’ service, but, as the complaint noted, after the September 11 attacks, he “saw an opportunity to sell his independent consulting services to the CIA.” According to the CIA Inspector General’s “Special Review: Counterterrorism Detention and Interrogation Activities (September 2001 – October 2003),” another important document analyzing the perceived successes and failures of the torture program, which was issued in May 2004 but was only made publicly available (in a heavily redacted form) last August (PDF), Mitchell’s involvement in developing the program began in December 2001, when, in collaboration with a Department of Defense psychologist who also had SERE experience — John “Bruce” Jessen —  he was “tasked … to write a paper on Al-Qaeda’s resistance to interrogation techniques.”

As the New York Times explained last August, Jessen was the SERE psychologist at the Air Force SERE school in the 1980s, but when he “moved in 1988 to the top psychologist’s job at a parallel ‘graduate school’ of survival training, a short drive from the Air Force school,” Mitchell “took his place.” The two men became friends, but the Times profile noted that, although “many subordinates considered them brainy and capable leaders, some fellow psychologists were more skeptical.” Two colleagues recalled that, at an annual conference of SERE psychologists, Mitchell “offered lengthy put-downs of presentations that did not suit him,” and Jessen ran into trouble when he moved from being a supervising psychologist to a mock enemy interrogator. According to colleagues, he “became so aggressive in that role” that they “intervened to rein him in, showing him videotape of his ‘pretty scary’ performance.”

This should have been an early warning sign for Jessen of the dangers of what the Senate Armed Services Committee report identified as “behavioral drift, which if left unmonitored, could lead to abuse of students,” and which, in a real-world scenario, involving alleged threats to the national security of the United States, was even more likely to occur. However, Jessen and Mitchell failed to pay it any attention, and in December 2001, despite having no experience whatsoever of al-Qaeda or of real-life interrogations, the two men produced a paper entitled, “Recognizing and Developing Countermeasures to Al-Qaeda Resistance to Interrogation Techniques: A Resistance Training Perspective,” which clearly met with approval. As the CIA IG report continued, “Subsequently, the two psychologists developed a list of new and more aggressive EITs [“enhanced interrogation techniques”] that they recommended for use in interrogations.”

The techniques recommended by Mitchell and Jessen included slamming prisoners into walls, cramped confinement, the prolonged use of painful stress positions, sleep deprivation for up to 11 days at a time, and waterboarding, and, as the New York Times explained last August, by early 2002, Mitchell was consulting with the CIA’s Counterterrorist Center, where director Cofer Black, and chief operating officer Jose A. Rodriguez Jr. were “impressed by his combination of visceral toughness and psychological jargon.” One witness said Mitchell “gave the CIA officials what they wanted to hear,” and by the end of March, when Abu Zubaydah was seized, “the Mitchell-Jessen interrogation plan was ready.”

This was in spite of numerous criticisms identified in the complaint filed last week, and in the Senate Armed Services Committee report. One of Mitchell and Jessen’s most prominent critics is Air Force Colonel Steve Kleinman, described in the complaint as “a former colleague at SERE who was also a career military interrogator with training in intelligence.” Col Kleinman stated that:

[W]hen Dr. Mitchell and Dr. Jessen became involved in CIA interrogations, “that was their first step into the world of intelligence … Everything else was role-play.” “What [Dr. Mitchell and Dr. Jessen] failed to understand was they were stepping out of their area of expertise,” yet they nonetheless promoted themselves as offensive interrogation experts despite the “disconnect between the SERE model, a resistance model, and an actual interrogation for intelligence purposes.”

Col. Kleinman has also stated, “I think they have caused more harm to American national security than they’ll ever understand,” and other high-level criticism has come from Michael Rolince, the former section chief of the FBI’s International Terrorism Operations, who described the methods employed by Mitchell and Jessen as “voodoo science.”

The importance of the timing of Mitchell’s involvement

The exact timing of Mitchell and Jessen’s involvement in developing the program is crucial, although it is not addressed in the complaint, because it is clear from the Senate Armed Services Committee report into detainee abuse that, in December 2001, William J. Haynes II, the Pentagon’s General Counsel (and a protégé of Vice President Dick Cheney), had begun soliciting advice from the Joint Personnel Recovery Agency (the DoD agency responsible for the SERE program). As the New York Times reported last August, that same month Mitchell’s involvement seems to have begun when he was invited as a member of “a small group of professors and law enforcement and intelligence officers,” including CIA psychologist Kirk M. Hubbard, who “gathered outside Philadelphia at the home of a prominent psychologist, Martin E. P. Seligman, to brainstorm about Muslim extremism.” As the Times also explained, to the later horror of Seligman, who had pioneered the notion of “learned helplessness” — whereby animals were taught through mistreatment that resistance was futile — Mitchell told him how much he admired his work, which, of course, fed directly into his plans for terrorist suspects captured in the “War on Terror.”

The timing is central, because it is necessary to understand that Mitchell and Jessen — though fired up by their own enthusiasm for reverse engineering SERE techniques — were not acting alone, and were, in effect, exactly the kind of individuals that Haynes, other members of the “War Council” and Cheney were already looking for.

I stress this point because, otherwise, the impression given by the complaint filed last week may be that Mitchell and Jessen acted independently, when, like the lawyers in the Office of Legal Counsel, they were clearly part of a program that was endorsed at the highest levels of the administration.

Mitchell’s numerous ethical violations

Nevertheless, in dealing specifically with James Mitchell’s role as one of the two key architects of the torture program, the complaint filed last week is devastating. As the authors of the complaint explained, “Dr. Mitchell has sullied his profession by violating the standards demanded by the Psychologists’ Licensing Act and the Board’s Rules of Practice,” specifically because he “misrepresented his professional qualifications and experience to the Central Intelligence Agency” in order to “achieve his ultimate plan of implementing a brutal interrogation and torture regime”; because he “designed this torture regime only by ignoring the complete lack of a scientific basis for the regime’s safety and — assuming its safety — its effectiveness”; and, “most ominously,” because he “himself tortured prisoners held in US custody and directly supervised others who engaged in torture at his direction.”

The complaint is worth reading in its entirety, partly because of its detailed explanations of Mitchell’s unprofessional activities, as, for example, when the authors note that, “At no time prior to implementing these programs did Dr. Mitchell conduct experiments, publish research about offensive interrogation techniques, or subject his theories to peer-review in a publicly-available forum,” and that his “failure to verify his interrogation regime using scientifically sound, empirical methods therefore constitutes direct violations of the Board’s Rule of Practice requiring licensees to rely on scientifically and professionally derived knowledge when making professional judgments and the Rule requiring licensees to take reasonable steps to ensure the safety of others involved in emerging fields of study.”

Why this story is bigger than Dr. James Mitchell

Moreover, the complaint also covers extensively what was actually involved in the torture of Abu Zubaydah, beyond the short summary at the start of this article, and leaves some tantalizing unanswered questions regarding the involvement of the CIA in developing the program. According to the CIA Inspector General’s 2004 report, the CIA’s Office of Medical Services (OMS) “was neither consulted nor involved in the initial analysis of the risk and benefits of EITs,” and claimed that “the reported sophistication of the preliminary EIT review was exaggerated, at least as it related to the waterboard, and that the power of this EIT was appreciably overstated.” The OMS also stated that “there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators [Mitchell and Jessen] was either efficacious or medically safe.”

This sounds plausible, but it could indicate an explicit attempt by the CIA — or the OMS, at least — to distance itself from the program as early as 2004, given that the Inspector General concluded the report by stating, “The Agency faces potentially serious long-term political and legal challenges as a result of the CTC [Counterterrorism Center] Detention and Interrogation Program, particularly its use of EITs and the inability of the US Government to decide what it will ultimately do with terrorists detained by the Agency.”

In 2004, when Abu Zubaydah and 27 other supposed “high-value detainees” were held in secret CIA prisons, that last concern must have weighed heavily. It is no less significant now, even though 14 of the men in question, including Zubaydah, are now held in Guantánamo, and this is not only because the whereabouts of 13 others are unknown (and one, Ibn al-Shaykh al-Libi, died in mysterious circumstances last May, having been returned to Libya), but also because the Obama administration has no idea what to do with Abu Zubaydah, the “guinea pig” for the torture program, who, after his horrendous treatment, was revealed not as a significant al-Qaeda leader, but as a mentally-damaged training camp facilitator, whose relationship with al-Qaeda was, at most, minimal.

When it comes to passing the buck for implementing torture, however, the CIA is also on shaky ground. In the complaint filed last week, James Mitchell was rightly targeted for his deeply disturbing role as a psychologist who spurned his professional obligations when, as the authors state bluntly, he “tortured prisoners in US custody,” but as is clear from the complaint and from other reports mentioned above, those involved in the program included senior CIA officials — director George Tenet, CTC director Cofer Black, and CTC chief operating officer Jose A. Rodriguez Jr. — as well as former Vice President Dick Cheney and the members of his “War Council” — David Addington, Alberto Gonzales, Tim Flanigan, John Yoo, William J. Haynes II and Daniel Dell’Orto — and other senior administration officials identified in the Senate Armed Services Committee’s report into detainee abuse, including former President George W. Bush and former defense secretary Donald Rumsfeld.

If there is to be any accountability for those who played a part in the introduction of a widespread US torture program whose brutal inefficiency both started with and was demonstrated through the torture of Abu Zubaydah, the compliant filed last week against James Mitchell ought to revive demands for a thorough investigation. To paraphrase President Obama, an investigation would need to look backwards so that America can look forward again without having to hide the dark truth about torture that continues to infect the way America views itself, and the way it is perceived by other countries — and the only way to do that is to hold the Bush administration’s torturers to account.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, Eurasia Review, The Public Record, The Smirking Chimp, Uruknet and The Mormon Worker.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Human Rights Council Discusses Secret Detention Report (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons (June 2010), UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq (June 2010), UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (June 2010). Also see the extensive archive of articles about the Military Commissions.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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