[Sosfbay-discuss] FW: FW: "Torturing Democracy" Film at Stanford Tues. 7 pm

[Brian Good]

Continuation of the digest of "The Green Light"


The Glassy-Eyed Men
  Joint Task Force 170 was not the only actor at
Guantánamo. The C.I.A. was looking for recruits among the detainees;
the Defense Intelligence Agency (D.I.A.) was interrogating detainees.
The F.B.I. was carrying out its traditional non-aggressive
interrogations.    


     
I suggested to Mike Dunlavey that the
administration’s notion that everything trickled up from the ground
at Guantánamo was counter-intuitive.  Possibly, he said,  "someone
was sent to my task force and came up with these great ideas.” One
F.B.I. special agent remembers that before any new techniques had
been officially sanctioned, he objected when military interrogators
set out to question al-Qahtani for 24 hours straight—a variation on
a method that would later appear in the Haynes Memo.  The agent was
told that the plan had been approved by “the secretary,”
Rumsfeld. 


    Diane Beaver, Dunlavey’s staff judge advocate,
was the lawyer who would later be asked to sign off on the new
interrogation techniques. When the administration released the list,
it was Beaver’s legal advice the administration invoked. Beaver's
account confirmed Dunlavey's intimations, and what others have told
me—that Washington’s views were being fed into the process by
people physically present at Guantánamo. D.I.A. personnel were among
them. Later allegations implicated three C.I.A. psychologists. 


   
During September a series of brainstorming
meetings were held at Guantánamo to discuss new techniques, some of
them led by Beaver.  D.I.A. and C.I.A. representatives attended. 
Ideas came from all over, including personal training experiences.
Contradicting administration denials, both Dunlavey and Beaver told
me that the sere military program (Survival, Evasion, Resistance, and
Escape) provided inspiration. Several Guantánamo personnel,
including a psychologist and a psychiatrist, traveled to Fort Bragg,
sere’s home, for a briefing. Fox TV’s dramatic series 24
"was hugely popular” as well, Beaver recalled.  Jack Bauer had
many friends at Guantánamo, Beaver said. “He gave people lots of
ideas.” The younger men would get glassy-eyed and excited in the
brainstorming session, Beaver said. “You could almost see their
dicks getting hard.” 


   The F.B.I. and the Naval Criminal Investigative
Service refused to be associated with aggressive interrogation. One
N.C.I.S. psychologist, Mike Gelles, stayed away from the
brainstorming sessions. He was dismissive of the administration’s
contention that the techniques trickled up on their own from
Guantánamo. “That’s not accurate,” he said flatly. “This was
not done by a bunch of people down in Gitmo—no way.” 


   
On September 25 a delegation of the
administration’s most senior lawyers arrived at Guantánamo. The
group included the president’s lawyer, Alberto Gonzales, who had by
then received the Yoo-Bybee Memo; Cheney’s lawyer, David Addington,
who had contributed to that memo; the C.I.A.’s John Rizzo, who had
asked for a Justice Department sign-off on individual techniques,
including waterboarding, and received the second Yoo-Bybee Memo; and
Jim Haynes, Rumsfeld’s counsel. “They wanted to know what we were
doing to get to this guy [al-Qahtani],”and they brought ideas from
D.C., Dunlavey said.  “They came down to observe and talk.”
Throughout this period, Dunlavey went on, Rumsfeld was “directly
and regularly involved.”

   
Beaver confirmed the account of the visit.
Addington was “definitely the guy in charge,” and talked a great
deal in a booming, confident voice.  Gonzales was quiet. Haynes, a
friend and protégé of Addington’s, seemed especially interested
in the military commissions. They met with the intelligence people
and talked about new interrogation methods. They also witnessed some
interrogations.  Their message:  Do “whatever needed to be done,”
a green light from the very top—the lawyers for Bush, Cheney,
Rumsfeld, and the C.I.A. The administration’s version of
events—that it became involved in the Guantánamo interrogations
only in November, after receiving a list of techniques out of the
blue from Dunlavey—was demonstrably false. 


“A Dunk in the Water”
   Two weeks after this unpublicized visit the 18 new
techniques were listed in a three-page memo to Dunlavey from
Lieutenant Colonel Jerald Phifer, dated October 11.   The Phifer Memo
identified the problem: “current guidelines” prohibited the use
of “physical or mental torture, threats, insults, or exposure to
inhumane treatment as a means of or aid to interrogation.” The
prohibition dated back to 1863 and a general order issued by Abraham
Lincoln. 


   
Rejecting this tradition, the new list provided
three categories of techniques with little guidance. No limits were
placed on how many methods could be used at once, or for how many
days in succession. The detainee was to be provided with a chair. The
environment should be generally comfortable. If the detainee was
uncooperative, you went to Category I: yelling and deception. 


   
If Category I failed, Category II offered 12
techniques of humiliation and sensory deprivation: stress positions,
such as standing; isolation up to 30 days; deprivation of light and
sound; 20-hour interrogations; removal of religious items; removal of
clothing; forcible grooming, such as the shaving of facial hair; and
the use of individual phobias, such as the fear of dogs, to induce
stress. 


   
The hardest cases got Category III:  “mild,
non-injurious physical contact,” such as grabbing, poking, and
light pushing; the use of scenarios designed to convince the detainee
that death or severely painful consequences were imminent for him or
his family; exposure to cold weather or water; and waterboarding.
This last technique powerfully mimics the experience of drowning.

  
By the time the memo was completed al-Qahtani had
already been separated from all other detainees for 64 days, in a
cell that was “always flooded with light.” An F.B.I. agent
described his condition the following month, just as the new
interrogation techniques were first being directed against him: the
detainee, a 2004 memo stated, “was talking to non-existent people,
reporting hearing voices, [and] crouching in a corner of the cell
covered with a sheet for hours on end.”

Ends and Means
   Diane Beaver was insistent that the decision to
use new interrogation techniques had to be properly written up and
authorized at the top. She says she believed that senior lawyers in
Washington would review her written advice and override it if
necessary. It never occurred to her that hers would be the last word.
 She didn’t know that much higher up the decision had already been
made--but that despite the secret legal cover from the Justice
Department, the top guys had no intention of soiling their hands with
the unpleasant details of interrogation. 


   
Marooned in Guantánamo, Beaver's access to books
and other documents was limited.  More experienced lawyers—at
SouthCom, the Joint Chiefs, the D.I.A., the jag School—declined to
help. "Dunlavey gave me just four days.”  Beaver wrote “Legal
Review of Aggressive Interrogation Techniques” on her own. She
wrote that none of the detainees were protected by Geneva, owing to
Feith’s handiwork and the president’s decision in February. Her
conclusion that the torture convention and other international laws
did not apply was questionable: “It was not my job to second-guess
the president,” she told me. Beaver ignored customary international
law altogether. 


   
Methodically testing each of the 18 techniques
against U.S. law, including the Eighth Amendment   (“cruel and
unusual punishment”), the federal torture statute, and the Uniform
Code of Military Justice, Beaver found the techniques acceptable they
were "necessary in a particular situation to achieve a
legitimate government objective, and it was applied in a good faith
effort and not maliciously or sadistically." That is to say, the
techniques are legal if the motivation is pure. National security
justifies anything. 


   Beaver included some caveats. The interrogators
had to be properly trained. Since the law required “a totality of
circumstances test,” all proposed Category II and III
interrogations needed "a legal, medical, behavioral science, and
intelligence review" beforehand. This suggested concerns, 
including questions of effectiveness, but she concluded, I “agree
that the proposed strategies do not violate applicable federal law.”
The word “agree” suggests that she is confirming a policy
decision that she knows has already been made.

    
She could reasonably have expected a more senior
review of her draft. She could not have anticipated that hers would
be the only written legal advice bearing on the Guantánamo
interrogations, or that she  would be made the scapegoat. 


  
Once, after returning to a job at the Pentagon,
Beaver passed David Addington in a hallway—the first time she had
seen him since his visit to Guantánamo. He recognized her
immediately, smiled, and said, “Great minds think alike.”

The “voco”
   On October 11, Dunlavey sent his request for
approval of new techniques, together with Diane Beaver’s legal
memo, to General Tom Hill, the commander of SouthCom.  On October 25,
Hill forwarded everything to General Myers, the chairman of the Joint
Chiefs, saying  "Our respective staffs, the Office of the
Secretary of Defense, and Joint Task Force 170 have been trying to
identify counter-resistant techniques that we can lawfully employ.”
 Thus the list of techniques was known to Rumsfeld’s office,
whatever its later claims. Hill expressed reservations. He wanted
opinions from Pentagon lawyers, and requested a DOJ review of 
Category III techniques. 


   
At the Joint Chiefs level the memo should have
been had a legal review, but that never happened. Alberto Mora, the
general counsel of the navy, says Myers's counsel told him, “Jim
[Haynes] pulled this away. We never had a chance to complete the
assessment.” Myers told me that normal procedures had been
circumvented.  “You don’t see my initials on this.” There was
no confirmation that Myers had seen the memo or formally signed off
on it before it went to Rumsfeld. “You just see I’ve ‘discussed’
it,” he said, noting a statement in the memo itself. “This was
not the way this should have come about.” Probably there was some
intrigue, he said, "between Jim Haynes, White House general
counsel, and Justice.” 


   
Further confirmation that the Haynes Memo got
special handling was the lack of a "buck slip", a
circulation roster that everyone was supposed to initial. The Haynes
Memo had no “legal chop,” or signature, from the general
counsel’s office. It went back to Haynes, who later signed off with
a note that said simply, “Good to go.” 


  Events moved fast as the process was
short-circuited. On November 4, Dunlavey was replaced as commander at
Guantánamo by Major General Geoffrey Miller. On November 12 a
detailed interrogation plan was approved for al-Qahtani, based on the
new techniques. The plan was sent to Rumsfeld for his personal
approval, General Hill told me. 


   
Ten days later an alternative plan prepared by
Mike Gelles and others at the N.C.I.S. and elsewhere, using
traditional non-aggressive techniques, was rejected. By then the
F.B.I. had communicated its concerns to Haynes’s office about
developments at Guantánamo. On November 23, well before Rumsfeld
gave formal written approval to the Haynes Memo, General Miller
received a “voco“—a vocal command—authorizing an immediate
start to the aggressive interrogation of al-Qahtani. No one I spoke
with, including Beaver, Hill, and Myers, could recall who had
initiated the voco, but an army investigation would state that it was
likely Rumsfeld, and he would not have acted without Haynes’s
endorsement.

   
Al-Qahtani’s interrogation log for that same day
registers immediate consequence of the decision:  “The detainee
arrives at the interrogation booth. His hood is removed and he is
bolted to the floor.”

Reversal
   Four days after the voco, Haynes formally signed
off on his memo. He recommended approval of 15 of the 18 techniques.
Of the four Category III techniques, however, Haynes proposed blanket
approval of just one: mild non-injurious physical contact. Though he
would later tell the Senate that he had recommended against
waterboarding, his memo states that “all Category III techniques
may be legally available.” Rumsfeld placed his name next to the
word “Approved” and wrote the jocular comment that may some day
bring him difficulties in the witness stand.

   
As the memo was being approved, the F.B.I.
communicated serious concerns directly to Haynes’s office. Then, on
December 17, Dave Brant of the N.C.I.S., paid a surprise visit to the
general counsel of the navy, Alberto Mora, to say that N.C.I.S.
agents had information that abusive actions at Guantánamo had been
authorized at a “high level” in Washington. The next day Mora met
again with Brant. Mike Gelles joined them and told Mora that the
interrogators were under extraordinary pressure to achieve results.
Gelles described “force drift,” where interrogators come to
believe that if some force is good, then more must be better.
According to his official memo to the Navy's Inspector General, Mora
visited Steve Morello, the army’s general counsel, and Tom Taylor,
his deputy, who showed him a copy of the Haynes Memo with its
attachments. “I was astounded that the secretary of defense would
get within 100 miles of this issue,” Mora told me. (Morello denies
showing Mora a copy of the Haynes Memo.)

   
On December 20 and on January 9, 2003,  Mora met
with Haynes.  The techniques hadn’t been stopped.  January 15, Mora
delivered a draft memo to Haynes saying 1)  most of the Category II
and III techniques violated domestic and international law and
constituted, at a minimum, cruel and unusual treatment and, at worst,
torture,  2) Diane Beaver's legal analysis had to be rejected and 3)
he “strongly non-concurred” with these interrogation techniques.
Two hours later, Haynes called Mora. “The secretary has rescinded
the authorization,” he said.

   
The abusive interrogation of al-Qahtani lasted 54
days. It ended not on January 12, as the press was told in June 2004,
but three days later, on January 15. In those last three days of
anything-goes,  interrogators pushed to get something useful out of
al-Qahtani. They got nothing. By the end of the interrogation
al-Qahtani, according to an army investigator, had “black coals for
eyes.”

The Great Migration
   Mike Gelles of the N.C.I.S. had expressed fears
that the al-Qahtani techniques might turn out to have been horribly
contagious. This “migration” theory potentially extended the
responsibility of those who authorized the Guantánamo techniques to
abusive practices elsewhere.  Understandably, John Yoo calls  the
theory “an exercise in hyperbole and partisan smear,” but three
official investigations in three years have confirmed the migration
theory. The August 2006 report of the Pentagon’s inspector general
concluded unequivocally that Gitmo techniques had found their way to
Iraq. An investigation overseen by former secretary of defense James
R. Schlesinger determined that “augmented techniques for Guantanamo
migrated to Afghanistan and Iraq where they were neither limited nor
safeguarded.” 


   
Though Haynes and Rumsfeld reversed themselves
about al-Qahtani in January 2003,  the death blow to the
administration’s outlook did not occur until 2006. when on June 29,
the Supreme Court held in  Hamdan
v. Rumsfeld that
Guantánamo detainees were entitled to the protections of Geneva’s
Common Article 3. Invoking the legal precedents that Feith and Yoo
had sidestepped, the Court laid bare the blatant illegality of
al-Qahtani’s interrogation. A colleague said Haynes looked
“shocked” when the news arrived. “He just went pale.” Justice
Anthony Kennedy, joining the majority, pointedly observed that
“violations of Common Article 3 are considered ‘war crimes.’ ”



  
In response, the lawyers got busy. By mid-October,
Bush signed into law the Military Commissions Act, explaining that it
ensures that "our military and intelligence personnel will not
have to fear lawsuits filed by terrorists simply for doing their
jobs.” The interrogators and their superiors got immunity from
prosecution. Some of the lawyers contributing to this legislation
were immunizing themselves--but only inside the USA.

A Tap on the Shoulder
   I met in Nuremberg with a cherubic elderly
gentleman named Ludwig Altstötter, the son of the lead defendant in
United States of America
v. Josef Altstoetter et al.,
which had been tried in 1947 in  Germany before a U.S. military
tribunal. This appears to be the only time lawyers have ever been
convicted for committing international crimes through the performance
of their legal functions. It inspired the Oscar-winning 1961 movie
Judgment at Nuremberg,
whose themes are alluded to in Marcel Ophuls’s classic 1976 film on
wartime atrocities, The Memory of Justice.

   
The Allies prosecuted the 16 defendants in the
Altstötter case to establish the principle that lawyers and judges
in the Nazi regime bore a particular responsibility for its crimes.
Josef Altstötter was a well-regarded member of society and a
high-ranking lawyer. In 1943 he joined the Reich Ministry of Justice
in Berlin, where he served as a Ministerialdirektor,
the chief of the civil-law-and-procedure division. He joined the SS
in 1937. The U.S. Military Tribunal found him guilty of membership in
that criminal organization—with knowledge of its criminal acts—and
gave him five years.  The tribunal’s judgment says: “He gave his
name as a soldier and a jurist of note and so helped to cloak the
shameful deeds of that organisation from the eyes of the German
people.” 


   
Two letters were instrumental the conviction:  one
dated May 3, 1944 from the SS intelligence service asking Josef
Altstötter to stop the regional court of Vienna from ordering the
transfer of Jews from the Theresienstadt concentration camp to appear
as witnesses in court.  The second letter was from Altstötter, a
month later, to the president of the court in Vienna. “For security
reasons,” he wrote, “these requests cannot be granted.” 


   
The words “security reasons” echo Jim Haynes's
remarks at the press conference with Gonzales: “Military necessity
can sometimes  …  infringe on the otherwise applicable articles of
the Convention.” Haynes provided no legal authority for that
proposition. None exists. The minimum rights of detainees guaranteed
by Geneva and the torture convention can never be overridden by
claims of security or other military necessity. That is their whole
purpose. 


   
Mohammed al-Qahtani is among the first six
detainees scheduled to go on trial for complicity in the 9/11
attacks; the Bush administration said that it will seek the death
penalty. Last month, President Bush vetoed a bill that would have
outlawed the C.I.A.'s use of the Haynes techniques used on
al-Qahtani. Whatever he may have done, Mohammed al-Qahtani was
entitled to the protections afforded by international law, including
Geneva and the torture convention. His interrogation violated those
conventions. He was treated cruelly and degraded, the standards of
Common Article 3 were violated, and his treatment amounts to a war
crime. If he suffered the degree of severe mental distress prohibited
by the torture convention, then his treatment crosses the line into
outright torture. These acts resulted not from ground-level requests
in Guantánamo, but from a policy decision made at the top and
supported by legal advice from the president’s own circle.

   
Those responsible for the interrogation of
Detainee 063 face a real risk of investigation if they set foot
outside the United States. Article 4 of the torture convention
criminalizes “complicity” or “participation” in torture, and
the same principle governs violations of Common Article 3. 


  
t would be wrong to consider the prospect of legal
jeopardy unlikely. I remember sitting in the House of Lords during
the Pinochet case in 1999—in which a prosecutor was seeking the
extradition to Spain of the former Chilean head of state for torture
and other international crimes—and being told by one of his key
advisers that they had never expected the torture convention to lead
to the former president of Chile’s loss of legal immunity. I showed
the Guantanamo materials to a judge and a prosecutor in a major
European city.  The prosecutor said the immunity from prosecution
provided by the Military Commissions Act “is very stupid” because
it makes it easier for investigators outside the USA to argue that
possible war crimes would never be addressed by the justice system in
the home country—one of the trip wires enabling foreign courts to
intervene. For some of those involved in the Guantánamo decisions,
prudence may dictate caution in international travel. For some the
future may hold a tap on the shoulder.  “These things take time,”
the judge said.  “And then something unexpected happens, when one
of these lawyers travels to the wrong place.”


Philippe Sands is an
international lawyer at the firm Matrix Chambers and a professor at
University College London. His latest book is Torture
Team: Rumsfeld's Memo and the Betrayal of American Values
(Palgrave Macmillan).




> Date: Tue, 25 Aug 2009 21:56:19 -0700
> From: fredd at freeshell.org
> To: sosfbay-discuss at cagreens.org
> Subject: [Sosfbay-discuss] "Torturing Democracy" Film at Stanford Tues. 7 pm
> 
> It was a gripping documentary. The Bush Administration's support of the 
> grossly illegal torturing was disgusting. There seems to be ample 
> evidence to indict Bush, Rumsfeld, Cheney, Yo, Hughes and others in that 
> gang. Will there be the ethical will to do so?
> 
> Fred
> 
> Free Food!
> 
>   Havana Room of the Graduate Community Center, 750 Escondido Road. 
> Parking
> should not be a problem after 4 pm.
> 
> >From Embarcadero and El Camino, take Embarcadero toward the mountains.
> At the first stop sign turn left.  Go past the gas station.  At the next 
> intersection,
> turn left.  #750 will be on your right.
> 
> "Torturing
> Democracy" tells about the policies that led the US to
> become (with no small
> help from Stanford's own Condi Rice) a
> practitioner of torture. It was supposed to be
> shown on PBS last year,
> but then some mysterious "scheduling conflicts" came up
> and they
> canceled it. But we've got it now, so come check it out!
> 
> 
> When: Tuesday, August 25th, 7:00 pm
> 
> Where: Havana Room, Graduate Community Center, 750 Escondido Rd.
>     "Torturing Democracy" tells the inside story of how the US 
> government adopted
> torture as official policy in the aftermath of 9/11.  With exclusive 
> interviews, explosive
> documents and rare archival footage, award winning filmmaker Sherry 
> Jones has
> crafted the definitive account of a deeply troubling chapter in recent 
> American history.
>   "Torturing Democracy" carefully presents the evidence that leads 
> straight to the top
> of the chain of command -- and so lays to rest the "rotten apple" 
> defense for abusive
> 
> 
> 
> interrogations at Guantanamo, Abu Ghraib and elsewhere.
> 
> Sponsored by the Graduate Student Programming Board
> 
> 
> 
> 
> 
> 
> 
> _________________________________________________________________
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