Category Archives: Torture

Did Solitary Confinement Make UndieBomber 1.0 Incompetent to Represent Himself?

By:  Wednesday May 22, 2013 2:47 pm

But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

– John Brennan, describing the way the FBI gets suspects to talk after Mirandizing them

Here’s something you may not know: Umar Farouk Abdulmutallab, the first UndieBomber, is appealing his conviction and sentence.

He’s doing so on several grounds, including that his confession made during public safety questioning while on fentanyl should not have been admissible at trial. But the most interesting issue — and the one that takes up the bulk of his appeal — argues Abdulmutallab was not competent to represent himself. (His appeal, as well as the government response and his reply only recently got unsealed by the Circuit Court.)

As the appeal notes, back in August 2011, after he had been in custody almost 20 months, his standby counsel Anthony Chambers submitted a motion requesting a competency hearing, one the judge rejected.

His standby counsel filed a motion requesting a competency hearing, noting that Abdulmutallab suffered “mental lapses,” engaged in “bizarre behaviors,” and sometimes seemed interested in presenting a defense while at other times he seemed indifferent to his defense. Abdulmutallab also demonstrated indifference toward his defense in front of the district court. The district court denied the motion for a competency examination based largely on Abdulmutallab’s own equivocal and rambling profession of competency. The failure to hold the competency examination cannot be cured after the fact and requires a new trial so that a “concurrent determination” of competency can be made. Abdulmutallab’s guilty plea did not waive the competency issue because a person whose competence is in doubt cannot knowingly, voluntarily, and intelligently waive a right or plead guilty.

The appeal cites consistent difficulties Abdulmutallab and attorneys tied to his case had with the Milan Correctional Facility, where he was being held in solitary confinement with communication restrictions. At almost every status hearing (save the one where he fired his court appointed lawyers), Abdulmutallab complained about the communication restrictions placed on him at Milan. (“Milan” is pronounced My-lin.)

At a status conference on April 13, 2010, his attorney’s reported that security restrictions at Federal Correctional Institute Milan (“Milan”) had severely limited their ability to meet with him to review discovery and other matters. He was held in solitary confinement under constant 24-hour manned observation.

Continue reading →


NYTimes Carefully Transcribes Dubious Denials of US Role in Wardak Province Torture, Murders

By:  Monday May 13, 2013 9:54 am

As evidence from investigations carried out by Afghan officials continues to mount that a figure now named (although it seems quite likely to me that this is not a real name) Zakaria Kandahari is at the heart of the cases of torture and murder of Afghan civilians that prompted Hamid Karzai to ban US Special Forces from Maidan Wardak province in February, the US found it necessary to provide an anonymous official to the New York Times as they published the Afghan revelations. Here is the heart of the dispute as outlined in the Times article:

The accusations against the man, Zakaria Kandahari, and the assertion that he and much of his unit are American are a new turn in a dispute over counterinsurgency tactics in Wardak that has strained relations between Kabul and Washington. American officials say their forces are being wrongly blamed for atrocities carried out by a rogue Afghan unit. But the Afghan officials say they have substantial evidence of American involvement.

They say they have testimony and documents implicating Mr. Kandahari and his unit in the killings or disappearances of 15 Afghans in Wardak. Mr. Kandahari is of Afghan descent but was born and raised in the United States, they say. Included in the evidence, the Afghan officials say, is a videotape of Mr. Kandahari torturing one of the 15 Afghans, a man they identified as Sayid Mohammad.

As the discussion moves to the videotape, the anonymous official is trotted out:

Afghan officials who have seen the videotape say a person speaking English with an American accent can be heard supervising the torture session, which Mr. Kandahari is seen conducting.

An American official, speaking on the condition of anonymity in line with official policy, confirmed the existence of the video showing Mr. Kandahari but denied that he was an American citizen. “Everybody in that video is Afghan; there are no American voices,” the official said.

What appears not to be in dispute, then, is that Kandahari is torturing the victim in the tape. The US claims no Americans are present and even that the voice identified by the Afghans as having an American accent is not American. But how can the anonymous US official know whose voice is the one in dispute? If the person is not seen on the tape, then the only way the American official’s claim could be true is if they carried out voice analysis on a computer and got a positive match with a person known not to be American.

But the next denial from the anonymous official is even less believable. The US Special Forces group at the center of this controversy is now known to have been based in the Nerkh district of the province and to be an “A Team”, “who work with extra resources that the military calls “enablers””. Remarkably, the article doesn’t make the tiny leap that is needed to deduce that at least some of these “enablers” working with the A Team must be CIA, even though near the end of the article, it is noted that this group came to Nerkh from Camp Gecko in Kandahar and there is a definite CIA connection there: Continue reading →


Human Rights Groups to Obama: Don’t Let John Brennan Cover Up the Torture He Condoned

By:  Tuesday May 7, 2013 3:21 pm

Eight human rights organizations just sent a letter to President Obama urging him to appoint a high level White House official to coordinate the Senate Intelligence Committee torture report out of the White House. Like the letter Mark Udall already sent, this one implies releasing the report is crucial to delivering on Obama’s 2009 promise to end torture.

As one of your very first acts as President, you signed an Executive Order that closed the CIA’s “black sites” and restricted the agency to the techniques in the Army Field Manual.

[snip]

We believe the public release of the Senate Select Committee on Intelligence study is critical to upholding your 2009 Executive Order. Safeguarding your Executive Order from being overturned by a future administration or Congress will help ensure that the United States does not return to policies of torture and cruelty again.

But here’s the key paragraph.

Most importantly, your administration has a responsibility to ensure that the Executive Branch response to the study is not driven by individuals who might be implicated in the CIA’s use of torture. While it is appropriate for individuals who have direct knowledge of the program to provide input, others with knowledge of the program should also be consulted. We urge you to ensure that a consolidated response representing the considered view of all parts of the Executive Branch is submitted to the Committee for review. [my emphasis]

Let’s name names, shall we?

The person currently driving the Torture Report declassification process is a guy by the name of John Brennan (indeed, as Goldman and Apuzzo note in their coverage of the Clandestine Service decision, few other high ranking torturers are left).

At the time the torture program was instituted, he was CIA’s Deputy Executive Director, in charge of things like logistics and personnel. He was, at a minimum, read into the torture techniques as they were being approved. Few people around at the time remember him expressing any opposition to them — aside from wanting the politicians who approved torture to be held responsible for it. Brennan also admits to knowing the torture was taped, and his forgetfulness about whether he sought information on CIA lawyer John McPherson’s review of the torture tape leads me to suspect he learned, at the time, that the torturers were destroying the record of them exceeding torture guidelines. Brennan also — after he had moved on to the Terrorist Threat Integration Center — relied on information derived from torture in sworn declarations submitted to the FISA court.

I’d say all that qualifies Brennan as an “individual who might be implicated in the CIA’s use of torture.” (It should also have disqualified him for the job, but you fight torture with the Senate you have, not the one that might be a functioning oversight body.)

That is, these human rights groups, though far more polite than I am, are basically saying that John Brennan shouldn’t be entrusted with this declassification decision because he’d be covering up his own role in it (he is mentioned, though not badly implicated, in the report).

But that same line is also where the logic of this letter fails.

After all, as I have pointed out, torture was not CIA’s baby. It was the White House’s. And while Obama personally had no role in authorizing torture (except insofar as the government relies on Appendix M to use techniques that amount to torture, and outsources it to countries like Somalia), the President — President Bush — did. So while, unlike Brennan, Obama isn’t personally implicated in what the report shows, his office — one whose authority he has jealously guarded — is. Every appeal to the White House to declassify this report should be clear about that fact.

Particularly given the one objection Brennan is reported to have expressed back in the early days of torture:

He expressed concern, according to these officials, that if details of the program became public, it would be CIA officers who would face criticism, rather than the politicians and lawyers who approved them.

The one objection Brennan had to torture, it seems, is that the CIA — not the White House — would be blamed for it.

I would imagine the White House knows that well.


Brennan Cedes to Feinstein on Torture Tape Destroyer But “Defiant” on Torture Report

By:  Tuesday May 7, 2013 12:06 pm

The WaPo reports that the woman who helped Jose Rodriguez destroy the torture tapes will not — as had been floated — officially lead the Clandestine Services.

A female CIA officer who was the first woman to lead the agency’s clandestine service, but was also closely tied to the agency’s interrogation program, will not get to keep that job as part of a management shake-up announced Tuesday by CIA Director John O. Brennan, U.S. officials said.

The report (sourced to “US officials,” which can be code for members of Congress or staffers) emphasizes that the intervention of members of Congress — and Dianne Feinstein specifically — played in key role in persuading John Brennan such an appointment would be a problem.

But the woman, who remains under cover, faced opposition from senior lawmakers over her ties to an interrogation program that critics have said employed torture to get information from al-Qaeda captives after the Sept. 11, 2001, attacks.

[snip]

Sen. Dianne Feinstein (D-Calif.), the chairwoman of the Senate Intelligence Committee, had called Brennan to express concern over the possibility that someone so closely linked to the program would be put in position to lead the agency’s spying service.

Kudos to DiFi for what appears to be successful oversight.

The only problem is the same article notes that Brennan is preparing to blow off DiFi’s torture report.

The transition comes at a time when the agency is assembling what is said to be a defiant response to a recently completed report by the Senate Intelligence Committee that is sharply critical of the interrogation program and its results.

As I have noted in the past and elaborated on at Salon yesterday, Brennan’s “defiance” should not matter. Ultimately, the White House has the authority to release the report.

But it’s trying to dodge the issue.

And now, in spite of Panetta’s claims that the White House originally made torture a SAP, the White House has done nothing to accelerate the release of a report that — according to Democrats on the committee and John McCain — will correct many misconceptions about the torture program.

Of course, as president, Obama would have the authority to order John Brennan to declassify the report in any case. But the White House seems unwilling to acknowledge whether it possesses the sole authority over this decision. In response to a question whether — as Panetta’s statement indicates — the White House has classification authority over the program, NSC spokesperson Caitlin Hayden didn’t answer.

Instead, she used the same kind of stalling technique as the CIA:

The Administration is currently reviewing the full 6,000 page report at the invitation of the SSCI and we look forward to working with the Committee once that review is complete.

I suspect the White House will use Brennan’s “defiance” as cover for keeping the report hidden.

What Brennan does in personnel decisions that remain hidden won’t get the CIA out of the torture business. Only real transparency on it will.

Update: The Cable published the entire letter announcing the personnel changes at CIA. It ends with this claim about the woman passed over at Clandestine Services.

The assertion she was not chosen because of her affiliation with the CT mission is absolutely not true.

I guess for the CIA, destroying evidence of torture is considered “the [counterterrorism] mission.”


With Bradbury’s Appendix M Opinion and 7th Circuit Vance Decision, the Government Can Torture Any of Us

By:  Thursday May 2, 2013 1:37 pm

Three years ago, I showed how Steven Bradbury wrote an OLC memo that approved in advance whatever techniques DOD wanted to put into the sometimes classified Appendix M of the Army Field Manual. At the time, DOJ implied to me that this memo was rescinded along with the rest of Bradbury and John Yoo’s torture memos.

In a really important post yesterday, Jeff Kaye explained that the memo, in fact, remains operative.

LTC Breasseale explained in an email response to my query last year:

Executive Order (EO) 13491 did not withdraw “‘All executive directives, orders, and regulations… from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals.’” It revoked all executive directives, orders, and regulations that were inconsistent with EO 13491, as determined by the Attorney General…. [bold emphasis added]

One last point – you seem suggest below that EO 13491 somehow cancelled Steven Bradbury’s legal review of the FM. EO 13491 did not cancel Mr. Bradbury’s legal review of the FM.”

When I then asked the Department of Justice to confirm what Breasseale had said for a story on the Bradbury memo, spokesman Dean Boyd wrote to tell me, “We have no comment for your story.” The fact Boyd did not object to Breasseale’s statement seems to validate the DoD spokesman’s statement.

Breasseale also described DoD’s view that both the current AFM and Appendix M were “not inconsistent with EO 13491,” which “expressly prohibits subjecting any individual in the custody of the U.S. Government to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in the FM. In addition, the Detainee Treatment Act of 2005 expressly prohibits subjecting any individual in the custody of the U.S. Department of Defense to any treatment or technique of interrogation that is not authorized by and listed in the FM. In short, both the President and the Congress have determined that the interrogation techniques listed in the FM are lawful,” Breasseale said.

In his post, Kaye provides a lot of details for why the continued applicability of the memo, authorizing separation, is deeply troubling. I’d add that the particular structure of the memo, which of course allows the insertion of physical torture techniques previously abandoned under cover of classification, adds to the concern.

But there is a pending legal reason why it is important, too.

A few years ago, two contractors, Donald Vance and Nathan Ertel, sued Donald Rumsfeld and others for the torture they were subjected to at Camp Cropper after whistleblowing about Iraqi and US corruption.

The torture was, in large part, the “separation” permitted in Appendix M. As part of their case implicated Rummy personally, they described how, immediately after Congress passed the Detainee Treatment Act, Rummy invented Appendix M as a way to evade the law. Continue reading →


Mark Udall to Obama: You Can Force John Brennan to “Excise the Demons”

By:  Wednesday May 1, 2013 1:23 pm

I have to admit, this letter from Mark Udall urging Obama to support the release of the Senate Intelligence Committee’s torture report is close to shrill when describing CIA Director John Brennan’s disinterest in declassifying the report.

Meanwhile, there have been media reports that the CIA is planning an “aggressive response” and is objecting to a “majority” of the Committee’s Study. While I find these reports hard to believe, I am concerned that despite my request — and requests from Chairman Feinstein and other colleagues on the Committee — Director Brennan and his staff have shown little to no interest in engaging collaboratively and constructively with the Committee on a path forward on the Committee’s Study. In fact, despite repeated requests by Members, the CIA has declined to meet or discuss the Study with Committee staff. [my emphasis]

But a more important detail elaborates on something hinted at in this report of Joe Biden’s support for releasing the report.

Speaking about the classified Senate Intelligence report on the use of torture or enhanced interrogation by the United States, Biden suggested that his personal view is that he agrees with McCain that more information should be made public, while he noted it has been the subject of intense debate at both ends of Pennsylvania Avenue.

“Now this voluminous study has been done,” Biden said. “And the internal debate that goes on in the Congress and in the White House is, do we go back and do we expose it? Do we lay out who was responsible and how we got to where we are?”

“It offends the fundamentals of what kind of country we are, and the practical side of it is, don’t think it didn’t damage the United States’ image in the world in ways that we’ll be paying for for years to come,” McCain said, noting his support for disclosing more details of what happened.

“It is not resolved yet, John, but I’m where you are. I think the only way you excise the demons is you acknowledge, you acknowledge exactly what happened straightforward,” Biden said. [my emphasis]

That is, the CIA is not the only part of the Executive Branch debating the release of the report. So is the White House. And while Udall is much less shrill with this suggestion than his description of Brennan’s disinterest in discussing the report, he does imply that Obama ultimately gets to make this decision.

It is my understanding that the comments from your administration will reflect not only the views of the CIA, but also other Executive Branch agencies impacted by the CIA’s detention and interrogation program. I believe the views of other government agencies and the White House are absolutely essential in order to engage in a constructive, lessons-learned dialogue.

In 2009, you made it clear that the CIA’s detention and interrogation program and its “enhanced interrogation techniques” had no place in an Obama administration. I deeply appreciate your stand on these important issues. I also applaud the recent comments of Vice President Biden about the need to “excise the demons” and acknowledge what was done under the CIA’s detention and interrogation program. Only by acknowledging and correcting the false public record can the CIA — with your support — credibly institute the necessary reforms that are essential for the CIA to be its best. I strongly believe — and trust that you agree — that publicly acknowledging the truth of this program, regardless of how uncomfortable, is necessary, consistent with our country’s history and ideals, and in the long-term interests of the CIA and the American people. [my emphasis]

Obama’s Administration has tried to hide the fact in the courts, but the torture program was the President’s program, not CIA’s. According to then-CIA Director Leon Panetta, the NSC — not the CIA Director — was the entity that made the torture program a Special Access Program.

Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the sensitivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. Continue reading →


Mohamedou Ould Slahi’s Gitmo Memoir: A Slow Death

By:  Tuesday April 30, 2013 4:17 pm

Slate has a remarkable three part excerpt from the memoir of Mouhamedou Ould Slahi, a Mauritanian Gitmo detainee subjected to some of the worst torture. The intro, by Larry Siems, is here. (Some posts on his still-ongoing habeas fight are here, here, and here.) The whole thing reflects a remarkable, chilling, understanding of the Americans who kept him captive, even as he succumbs to his torture and starts lying to make the torture stop.

Reading the memoir, even as over a hundred detainees continue their hunger strike, I’m struck by the repeated theme of slow death, both in what Americans say to him, and in how he processes his own torture.

In Slahi’s story of Bagram, he tells of a “cowboy,” believing he doesn’t speak English, wishing he’ll die slowly.

Now I am sitting in front of a bunch of dead-regular U.S. citizens; my first impression, when I saw them chewing without a break: “What’s wrong with these guys, do they have to eat so much?” Most of the guards are tall, and overweight. Some of them were friendly and some very hostile. Whenever I realized that a guard [was hostile], I pretended that I understood no English. I remember one cowboy coming to me with an ugly frown on his face.

“You speak English?” he asked.

“No English,” I replied.

“We don’t like you to speak English, we want you to die slowly,” he said.

“No English,” I kept replying. I didn’t want to give him the satisfaction that his message arrived. People with hatred have always something to get off their chests, but I wasn’t ready to be that drain.

Slahi thinks about slow death as he recounts the fake rendition staged with Donald Rumsfeld’s authorization, in which a Jordanian and Egyptian took Slahi on a boat trip to make him think he might be rendered to Egypt. After hours a beating, they wrapped him in ice.

The order went as follows: They stuffed the air between my clothes and me with ice cubes from my neck to my ankles, and whenever the ice melted they put in new hard ice cubes. Continue reading →


Outsourcing America’s Bad Human Rights Reputation

By:  Monday April 22, 2013 11:33 am

Given all the attention to the Administration’s decision, thus far, to neither Mirandize nor charge Dzhokhar Tsarnaev, I wanted to point back to two things that happened last week.

First, in a hearing before the House Appropriations Committee, in response to Congressman Frank Wolf’s frustrated declaration (for a variety of totally justified — such as Holder’s delay in implementing a prison rape preventing program — and totally bogus reasons) that he was just going to ignore Eric Holder, Holder made a case that his DOJ is doing a great job. Josh Gerstein describes his little speech:

I’m proud of what we’ve done across the board at the Justice Department in the last four and a half years. I’m proud of what I’ve done as attorney general. The department that we have now is fundamentally different than the department I found when I got there. We don’t hire people on the bsis of political orientation. We don’t do things as was done in the previous administration. We don’t write memos that say that torture is appropriate when dealing with interrogation techniques. [my emphasis]

No. As far as we know, at least (given the secrecy of the Administration), they have not written memos saying torture is appropriate when dealing with interrogation. They have, however, written memos stretching the concept of public exception beyond its intended function. They have also written memos reinterpreting due process before execution to mean “what John Brennan says in secret.”

In other words, Eric Holder’s DOJ has written memos authorizing practices that are alternatives, but arguably not much better, than the policies his predecessors rubber stamped.

Meanwhile Micah Zenko has a great post summarizing how many of the counterterrorism acts presumably conducted in cooperation with US forces — if not by US forces yet blamed on local ones — fall under the State Department’s definition of human rights violations.

Today—eighty-nine days past its legal deadline—the State Department released its annual Country Reports on Human Rights Practices for 2011. The new, user-friendly interface allows you to find and read individual country chapters much more quickly and easily (and might explain the delay). For all its flaws, the report remains a must-read for its reporting and candor. It serves as a generally honest counter to the rosier assessments of U.S. partners and allies’ human rights practices.

From my vantage point of trying to understand the Obama administration’s policies and practices of target killings, the report is also notable for what it does not include; namely, any mention of U.S. involvement in or responsibility for such operations.

The chapter on Yemen, for instance, has an entire section dedicated to “killings:”

The government also employed air strikes against AQAP and affiliated insurgents in Abyan, with some strikes hitting civilian areas. Although some accused the government of intentionally striking civilians in Abyan, most if not all noncombatant casualties from these bombardments were attributed to a lack of air force training and technical capability.

First, because U.S. targeted killings in Yemen are “covert,” the State Department cannot acknowledge American complicity or collusion. But it stands to reason that some, if not a majority, of these air strikes were carried out by CIA or Joint Special Operations Command (JSOC) drones, or even U.S. Navy assets offshore.

Zenko goes on to point to passages criticizing human rights abuses in Turkey, Somalia, and Pakistan that likely have US involvement.

It’s bad enough that the Attorney General’s measurement of his Department’s performence is measured against John Yoo’s standards, not the law, but we’re probably helping other countries violate State’s own standards for human rights.

All the while dodging the real shame that ought to come from such abuses.

 


Even Bipartisan Conventional Wisdom Report Says It Was Torture

By:  Tuesday April 16, 2013 11:02 am

The Constitution Project has released a major report on the government’s torture program. You can download the report here.

The report is important and comprehensive, but not without flaws. It took me a matter of minutes to find a number of errors, repetition of dangerous misinformation, and incomplete reporting. While I may lay out some of these problems at more length after the report has had its big publicity splash, suffice it to say the report tends to preference newspaper reporting over actual primary sources, and at times it appears completely unaware of what primary sources say.*

As such, the report represents a cautious, bipartisan, institutionalist view. Which is why its conclusion is so valuable. Because even this cautious, bipartisan, institutionalist report concludes the following (among other findings):

Finding #1 U.S. forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved “cruel, inhuman, or degrading” treatment. Both categories of actions violate U.S. laws and international treaties. Such conduct was directly counter to values of the Constitution and our nation.

Finding #2

The nation’s most senior officials, through some of their actions and failures to act in the months and years immediately following the September 11 attacks, bear ultimate responsibility for allowing and contributing to the spread of illegal and improper interrogation techniques used by some U.S. personnel on detainees in several theaters. Responsibility also falls on other government officials and certain military leaders.

Finding #3

There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.

Finding #16

For detainee hunger strikers, DOD operating procedures called for practices and actions by medical professionals that were contrary to established medical and professional ethical standards, including improper coercive involuntary feedings early in the course of hunger strikes that, when resisted, were accomplished by physically forced nasogastric tube feedings of detainees who were completely restrained.

Finding #19

The high level of secrecy surrounding the rendition and torture of detainees since September 11 cannot continue to be justified on the basis of national security.

Finding #21

The Convention Against Torture requires each state party to “[c]riminalize all acts of torture, attempts to commit torture, or complicity or participation in torture,” and “proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” The United States cannot be said to have complied with this requirement.

In short: it was torture, it was illegal, it was not valuable, and it still needs to be prosecuted. (And, among other findings implicating it directly, the Obama Administration needs to stop force feeding Gitmo detainees.)

And all that’s ignoring some of the more damning evidence out there.

Let’s see whether bipartisan conventional wisdom serves its purported purpose, effecting change in cautious, institutionalist DC.

*I am admittedly biased on this front. I was within a day of being contracted to collect documents for this effort, but someone involved in the process deemed me — at a time when I was already loudly criticizing the Obama Administration for things they’ve done — too partisan for the project. Some of the documents I had already identified at that time are utterly absent from this report; in their place the report claims ignorance.