Democrats and Republicans do not agree that waterboarding to capture terrorists was a crime, but many do agree it was a blunder.
That’s the central wisdom offered by Eli Lake, in a piece arguing against a Human Rights Watch report calling on renewed accountability for torture based on the evidence presented in the Senate Torture Report.
It’s a bit of a muddle. Obviously, Lake’s reference to waterboarding invokes the understanding of torture prior to the SSCI Report, which revealed far more than waterboarding, including anal rape masquerading as rectal feeding. If there’s a consensus he’s defending, it’s a consensus about waterboarding and “rectal feeding.”
By the end of his piece, he argues both that his claimed consensus is breaking down, and that it still holds — though here, again, he’s focusing on waterboarding, not the anal rape that’s also at issue.
At the end of the Obama administration, that bipartisan consensus is beginning to erode. In 2008, both the Democratic (Obama) and Republican (Senator John McCain) candidates opposed torture and favored closing Guantanamo. In 2015 Donald Trump has come out enthusiastically for waterboarding, pledging to authorize its use again if elected president. Carly Fiorina has defended waterboarding, saying it yielded valuable intelligence, and Jeb Bush has said he is open to repealing the ban on torture imposed by Obama.
Nonetheless other Republicans have held a firmer line. Both Ted Cruz and Rand Paul voted for the anti-torture amendment this summer. Many progressives hope this bipartisan opposition to torture can hold together after Obama leaves office. But this consensus will break apart if a foreign court prosecutes George W. Bush for a crime Barack Obama has long considered a blunder.
Key to understanding Lake’s call to hold off on investigating the torturers, though, is that “anti-torture amendment” that Cruz and Paul support but Carly and Trump might not. Here’s how HRW describes the amendment — which is a call to adhere to the Army Field Manual — in its report.
On June 16, 2015, the US Senate passed an amendment proposed by senators John McCain and Dianne Feinstein to a defense spending bill (the National Defense Authorization Act for Fiscal Year 2016) that if it becomes law, could codify much of what is in Obama’s executive order 13491. The amendment passed in the Senate by a vote of 78-21. The entire bill was then vetoed by Obama over other issues, but a similar provision remained in the compromised version bill which, as of this writing, was expected to be signed into law by the President. It provides that any individual detained by the US in an armed conflict can only be interrogated in ways outlined by the US Army Field Manual on Intelligence Interrogations. It also requires review and updating of the manual within three years to ensure that it reflects current best practice and complies with all US legal obligations and requires that the International Committee of the Red Cross get “notification of, and prompt” access to, all prisoners held by the US in any armed conflict. It is already clear under US law that torture and other ill-treatment is illegal but this requirement would help to more specifically restrain the physical action certain US interrogators could take. However, it is also impossible to know for sure how future administrations will interpret its obligations under the provisions. Additionally, an exemption for the FBI, the Department of Homeland Security, and other federal “law enforcement entities” was added to the compromised version of the bill.
That is, the amendment actually defers the review of techniques in the AFM to the next Administration, potentially a Cruz or Paul one, and doesn’t apply to the FBI.
As I and–especially–Jeff Kaye have pointed out, however, so long as the AFM has Appendix M in it, it can’t be considered a reliable guard against torture. Here’s part of what Kaye had to say about the watered down form in which the amendment was passed.
In what Democratic Senator Dianne Feinstein called a “minor” change to the National Defense Authorization Act (NDAA), a mandated review of the Army Field Manual (AFM) on interrogation was moved from one year to three years from now.
According to a “Q&A” at Human Rights First last June, the mandated review of the AFM was part of the McCain-Feinstein amendment to the NDAA, and was meant “to ensure that its interrogation approaches are lawful, humane, and based on the most up-to-date science.”
The fact there was any “review” at all was really a response to criticism from the United Nation’s Committee Against Torture, which demanded a review of the AFM’s Appendix M, which has been long criticized as allowing abusive interrogation techniques, including isolation, sleep deprivation, and sensory deprivation.
While it is a good thing that waterboarding and other SERE-derived forms of torture are not to be allowed anymore — and they were part of an experimental program in any case — long-standing forms of torture are now protected by law because they are part of the Army Field Manual itself.
When the pre-veto version of the NDAA was passed — the version that made the Army Field Manual on interrogation literally the law of the land — all the liberals and human rights groups stood up and applauded. None of them mentioned that only months before the UN had criticized the document for use of abusive techniques, and in particular the use of isolation, and sleep and sensory deprivation noted above. Not one.
So what we have now — what Lake would like to uphold — is a deferral of the issue to a potential Republican Administration. That’s not actually a consensus preventing torture at all .
Along the way to Lake’s conclusion showing any consensus against torture isn’t really a consensus against torture, he does cite to some people — Jack Goldsmith (prior to the report, though I suspect he’d still say the same, even though I’m not sure Americans would be as supportive of “rectal feeding” as of a whitewashed description of waterboarding), Glenn Carle, Raha Wala — who oppose reopening the torture question inside the United States. Yet along the way Lake keeps dodging DOJ’s approach to it.
Part of the problem for Human Rights Watch is that the Justice Department has already investigated cases where CIA officers went beyond the legal guidelines, and ended this probe in 2012 without pursuing prosecutions. Pitter pointed out that the federal prosecutor in this case, John Durham, has acknowledged that there were limitations on the evidence available to his team. Nonetheless, the Justice Department has not taken up the issue again.
DOJ has not taken up the issue again because it has refused to open the Torture Report. DOJ can’t very well consider the additional evidence (on top of talking to victims, which HRW did for its report) in the report so long as it doesn’t open it.
Which actually supports HRW’s point: there’s a conspiracy to cover up this torture, and given that it won’t be investigated here, other countries have an obligation to do so.
I actually think Lake misses a way to make his muddled argument much stronger. For one, I think there might be more consensus, blindly defending the US, if a foreign court started prosecuting the US for torture. If HRW gets its way — and foreign governments investigate torture — you’ll see a lot more agreement that the US shouldn’t have to submit to the review of other countries.
But I actually think the fact the anti-prosecution consensus is now defending anal rape and not just waterboarding is key. If we discussed the anal rape as such — as HRW does — it becomes a lot harder to defend (though there is admittedly far too much public tolerance of rape in criminal prisons in this country, to say nothing of Gitmo, to believe more candid discussion that this was really always about rape would sway the public).
The CIA also used “rectal rehydration” or “rectal feeding” which, as described in the Senate Summary, would amount to sexual assault, on at least five different detainees. The practice, not known to have been authorized by the OLC, involved inserting pureed food or liquid nutrients into the detainee’s rectum through a tube, presumably without his consent.The CIA claims this was a medically necessary procedure and not an “enhanced interrogation technique.” The Senate Summary, however, states the procedure was done “without evidence of medical necessity.” Medical experts report that use of this type of procedure without evidence of medical necessity is “a form of sexual assault masquerading as medical treatment.” At least three other detainees were threatened with “rectal rehydrations.” Allegations of excessive force used on two detainees during rectal exams to do not appear to have been properly investigated. One of those two detainees, Mustafa al-Hawsawi, was later diagnosed with chronic hemorrhoids, an anal fissure, and symptomaticrectal prolapse. Some CIA detainees have also reported having suppositories forced into their anus, and other detainees have reported CIA operatives sticking fingers in their anus.
But once you defend anal rape in the terms CIA and its supporters do — that obviously bogus claim that it served as feeding or rehydration — you quickly get to an ongoing practice that is often contraindicated by medical necessity but used for coercion: forced feeding at Gitmo. Excruciating nasal feeding, rather than excruciating rectal feeding.
Here’s what documents submitted in Abu Wa’el Dhiab’s bid lat year to halt his own forced-feeding revealed.
[T]hese documents reveal that back on May 7, one of the government’s primary rebuttals to claims about the conditions under which Dhiab was force fed last year was not to refute those claims, but rather to claim he had no standing to complain because he was not — at that point — being force fed. Only 6 days later Gitmo cleared Dhiab to be force fed.
Underlying this discussion is Dhiab’s claim that the government has made the standards for force feeding arbitrary so as to be able to subject those detainees leading force feeding campaigns to painful treatment to get them to stop.
To substantiate that argument, the memorandum unsealed on Friday lays out the changes made to Gitmo’s force feeding protocol in November and December. Those changes include:
- Deletion of limits on the speed at which detainees could be force fed
- Elimination of guidelines on responding to complaints about speed of force feeding
- Change of weight monitoring from daily to weekly
- Deletion of chair restraint guidelines (DOD made a special SOP to cover restraint chair they have thus far refused to turn over)
- Expansion of scenarios in which prisoners can be force fed, including those at 85% of ideal body weight (IBW)
- Deletion of provisions against on-off force feeding
- Discontinuation of use of Reglan (this has to do with potentially permanent side effects from the drug)
- Replacement of phrase “hunger strike” with phrase “medical management of detainees with weight loss”
In response, the government argued (at a time Dhiab was not eating but before they put him on the force feeding list) that he didn’t have standing because he had not been force fed for 2 months.
That is, Dhiab argued compellingly that force-feeding as it sometimes occurs at Gitmo is about coercion through pain, not about medical necessity.
Particularly during periods of broad hunger striking in Gitmo, it hasn’t been (primarily) about feeding prisoners who don’t want to eat. It has been about breaking resistance.
Along with Appendix M, the force-feeding practices at Gitmo are another thing the UN objected to last year.
And while Dhiab has been released, the 75-pound Tariq Ba Odah remains on hunger strike, though the Obama Administration still claims the authority to detain him (Odah has been cleared for release since 2010) and force-feed him, even though years of the process have created severe medical problems with doing so.
On this issue — the use of torturous techniques to coerce submission — I absolutely agree with Lake there is consensus. While some — including Dianne Feinstein and Gladys Kessler (who has seen videos of the process) oppose it — we’re not seeing any legislation to stop the practice and the Executive continues to insist it has absolute discretion in treatment of detainees at Gitmo so long as it is willing to claim it’s doing so for their own good, however dubious those claims may appear. That’s true, in part, because Democrats don’t want to discomfit their president.
And so, in the end, I agree with Lake that there is a consensus in DC. I’d even argue it’s nowhere near as fragile as he suggests by the end of his piece.
But I’d also argue the consensus that it is okay to nasally or rectally “feed” human beings — in some cases, for years — so long as you can excuse the obviously coerced submission involved with a claim of medical necessity is precisely why others should intervene. Lake may be right that there’s a consensus saying “rectal feeding” shouldn’t be prosecuted, but that doesn’t mean that consensus is defensible.
Back in May, I noted that in addition to an unclassified request that John Brennan correct his lies about CIA hacking the Senate Intelligence Committee torture investigators, Ron Wyden, Martin Heinrich, and Mazie Hirono also asked Brennan to correct a lie he told in March.
Additionally, we are attaching a separate classified letter regarding inaccurate public statements that you made on another topic in March 2015. We ask that you correct the public record regarding these statements immediately.
I suggested that Brennan probably lied in response to a request about working with human rights violators at a public speech at the Council on Foreign Relations.
QUESTION: I’m going to try to stand up. Sarah Leah Whitson, Human Rights Watch. Two days ago, ABC News ran some video and images of psychopathic murderers, thugs in the Iraqi security forces, carrying out beheadings, executions of children, executions of civilians. Human Rights Watch has documented Iraqi militias carrying out ISIS-like atrocities, executions of hundreds of captives and so forth.
And some of the allies in the anti-ISIS coalition are themselves carrying out ISIS-like atrocities, like beheadings in Saudi Arabia, violent attacks on journalists in Saudi Arabia—how do you think Iraqi Sunni civilians should distinguish between the good guys and the bad guys in this circumstance?
BRENNAN: It’s tough sorting out good guys and bad guys in a lot of these areas, it is. And human rights abuses, whether they take place on the part of ISIL or of militias or individuals who are working as part of formal security services, needs to be exposed, needs to be stopped.
And in an area like Iraq and Syria, there has been some horrific, horrific human rights abuses. And this is something that I think we need to be able to address. And when we see it, we do bring it to the attention of authorities. And we will not work with entities that are engaged in such activities.
(I even noted in real time he was refusing to respond to the part of the question about the Saudis.)
Brennan has now responded (Ali Watkins first reported on the letter on Friday). As part of his response, he admits that, contrary to his claim at CFR that “we will not work with entities that are engaged” in human rights abuses, in fact the CIA does — “because of critical intelligence those services provide.”
I understand your concerns about my brief, extemporaneous remarks. While we neither condone nor participate in activities that violate human rights standards, we do maintain corporative liaison relationships with a variety of intelligence and security services around the world, some of whose constituent entities have engaged in human rights abuses. We strive to identify and, where possible, avoid working with individuals whom we believe to be responsible for such abuses. In some cases, we have decided to continue those relationships, despite unacceptable behavior, because of the critical intelligence those services provide, including information that allows us to disrupt terrorist plotting against the United States.
Mind you, his letter implies that his response pertains only to “Iraqi security forces,” and not — as was part of the original question, but not one Brennan even acknowledged in his response — our allies the head-chopping Saudis.
I would suggest, however, that the Saudis are far better described as a service that provides us critical intelligence, “including information that allows us to disrupt terrorist plotting against the US.” I’d frankly be shocked if Iraqi security forces even have that capability, not to mention that the terrorists in Iraq are pretty focused on setting up their caliphate in Iraq right now, not attacking the US.
So kudos to John Brennan for owning up to the general lie, that “we will not work with entities that are engaged in” human rights abuses, even if in owning up to it, the old Riyadh Station Chief is still protecting his buddies the Sauds.
Baby steps, I guess.
In his appearance as the Council on Foreign Relations today, a woman with Human Rights Watch listed (starting at 56:30) a number of abuses our “partners” in the fight against ISIL engage in, including,
She then asked, “How do you think Iraqi Sunni civilians should distinguish between the good guys and the bad guys in this circumstance”?
After clearing his throat, Brennan responded,
It’s tough sorting out good guys and bad guys in a lot of these areas. It is. And human rights abuses, whether they take place on the part of I-S-I-L or of militias or individuals who are working as part of formal security services, needs to be exposed, needs to be stopped. In an area like Iraq and Syria, there has been some horrific, horrific human rights abuses and this is something that I think we need to be able to address. And when we see it, we do bring it to the attention of authorities. And we will not work with entities that are engaged in such activities.
Brennan changed a question that twice explicitly included Saudi Arabia to one that included only Syria and Iraq. Which he would have to do — because the US is not about to stop working with “entities” like Saudi Arabia, even if they do behead as many people as ISIL.
In a JustSecurity post reviewing the same speech that I observed ignored US failures to prevent violent extremism, NYU Professor Samuel Rascoff defends the US use of counterterrorism stings, even in spite of the details revealed by HRW’s report on all the problems related to them. David Cole has an excellent response, which deals with many of the problems with Rascoff’s argument.
I’d like to dispute a more narrow point Rascoff made when he suggested that, because we have so many fewer trained militants than the Europeans, we “can afford” the “luxury” of stings.
There are now approximately 3,000 European passport holders fighting in Syria and Iraq. In the time that it took Najibullah Zazi to drive from Denver to New York, a fighter could drive from Aleppo to Budapest. What that means is that European officials are relatively more consumed than American counterparts in keeping up with, and tabs on, trained militants. Orchestrating American-style sting operations is, in a sense, a luxury they cannot afford.
The claim is astonishing on its face, in that it suggests that, because we don’t have real militants like Europe does, we should engage in the “luxury” of entrapping confused young Muslim men and sending them to expensive decades-long prison terms.
Think a bit more about that notion of “luxury” and the financial choices we make on law enforcement. Here are some numbers taken from two sources: the HRW report (I basically searched on the dollar sign, though this doesn’t include every mention of dollars) and today’s Treasury settlement with Bank of America for helping 10 drug kingpins launder their money over a four year period, three years of which constituted “egregious” behavior.
First, HRW reports that FBI spends over $1.3 billion a year on counterterrorism, much of it stings, leaving less than $2 billion for all other investigations.
More than 40 percent of the FBI’s operating budget of $3.3 billion is now devoted to counterterrorism.
That allows the FBI to pay some of its informants and experts hefty sums.
Beginning in August 2006, the FBI paid Omar $1,500 per week during the investigation. Omar received a total of $240,000 from the FBI. This included: $183,500 in payment unrelated to expenses, and $54,000 for expenses incurred during the investigation including car repair and rent.
“Kohlmann is an expert in how to use the Internet, like my 12-year-old. He has found all the bad [stuff] about Islam, and testifies as if what he is reading on the Internet is fact. He was paid around $30,000 to look at websites, documents, and testify.”
These informants sometimes promise — but don’t deliver — similar hefty sums to the guys they’re trying to entrap.
Forty-five-year-old James Cromitie was struggling to make ends meet when, in 2009, FBI informant Hussain offered him as much as $250,000 to carry out a plot which Hussain—who also went by “Maqsood”—had constructed on his own.
The informant proposed to lend Hossain $50,000 in cash so long as he paid him back $2,000 monthly until he had paid back $45,000.
Which is particularly important because many of these guys are quite poor (and couldn’t even afford to commit the crimes they’re accused of).
At the time he was in contact with the informant and the undercover [agent] he was living at home with his parents in Ashland and he didn’t have a car, he didn’t have any money and he didn’t have a driver’s license because he owed $100 and he didn’t have $100 to pay off the fine. In various parts of the investigation he didn’t have a laptop and he didn’t have a cellphone. At one point the informant gave him a cell phone.
And some of these crimes (the very notable exceptions in the HRW report include two material support cases, both of which are close calls on charity designations, but which involved very large sums, $13 million a year in the case of Holy Land Foundation) involve relatively minscule sums.
According to the prosecution, Mirza was the ringleader in collecting around $1,000—provided by the FBI agents and co-defendant Williams—that he handed to a middleman with the intent that it go to families of Taliban fighters.
So one theme of the HRW report is we’re spending huge amounts entrapping what are often poor young men in miniscule crimes so taxpayers can pay $29,000 a year to keep them incarcerated for decades.
These are the stakes for what Rascoff calls a “luxury.” At a time of self-imposed austerity, these stings are, indeed, a luxury.
Compare that to what happens to Bank of America, which engaged in “egregious” violations of bank reporting requirements for three years (and non-egregious ones for a fourth), thereby helping 10 drug kingpins launder their money. No one will go to jail. Bank of America doesn’t even have to admit wrong-doing. Instead, it will have to pay a $16.5 million fine, or just 0.14% of its net income last year.
This settlement came out of a Treasury investigation, not an FBI one.
But when DOJ’s Inspector General investigated what FBI did when it was given $196 million between 2009 and 2011 to investigate (penny ante) mortgage fraud, FBI’s focus on the issue actually decreased (and DOJ lied about its results). When FBI decided to try to investigate mortgage fraud proactively by using undercover operations, like it does terrorism and drugs, its agents just couldn’t figure out how to do so (in many cases Agents were never told of the effort), so the effort was dropped.
Banks commits crimes on a far grander scale than most of these sting targets. But FBI throws the big money at its counterterrorism stings, and not the banks leaching our economy of its vitality.
Rascoff accuses HRW’s and similar interventions of being one-dimensional.
[F]or all the important questions about official practices that critics raise, they have tended to ignore some hard questions about the use of stings and the tradeoffs they entail.Instead, their interventions have an exaggerated, one-dimensional quality to them.
But he himself is guilty of his own crime. Because every kid the FBI entraps in a $240,000 sting may represent an actual completed bank crime that will never be investigated. It represents an opportunity cost. The choice is not just sting or no sting or (more accurately, as David Cole points out) sting or community outreach and cooperation.
Rather, the choice is also between manufacturing crimes to achieve counterterrorism numbers or investigating real financial crimes that are devastating communities.
So long as we fail to see that tradeoff, we fail to address one major source of the economic malaise that fuels other crimes.
Ignoring bank crimes is, truly, something we don’t have the luxury of doing. Nevertheless, we continue to choose to go on doing so, even while engaging in these “luxurious” counterterrorism stings that accomplish so little.
On Tuesday, I wrote about the disappearances, torture and murder for which the Afghan Local Police are known, comparing them to other death squad programs that the US has backed over the years in various military engagements. Sadly, there is another class of war crimes that US-trained death squads have engaged in. Rape, especially gang rape, also is a key tool employed by these groups in their efforts to intimidate local populations. (For one example, here are details of the brutal rape and murder of a group of US nuns in El Salvador in 1980, carried out by a US-trained death squad.)
Writing in the Daily Beast yesterday, Sami Yousafzai and Ron Moreau provided excruciating details on two victims of gang rapes carried out by groups in Afghan Local Police uniforms. From one of the accounts:
Seventeen-year-old Chaman Gul suffered a similar fate to that of Monizha. Relatives describe her as being a “healthy and attractive” young woman. In a phone interview with Newsweek/The Daily Beast, she described the ordeal she suffered two months ago in Aqsaee village, Darzab district, in the northern province of Jowzjan. As she, her relatives and other villagers tell it, she was brutally raped by seven men, including the local militia’s powerful commander, Murad Bai. “They broke down the door of our home and did to me, a number of times, horrible things that I can’t tell anyone or put into plain words,” she says from an undisclosed hiding place.
Other relatives and villagers confirm her account. One 60-year-old villager, who does not wish to be named for security reasons, says he watched as Bai and his men broke into Gul’s house. He says they were wearing the khaki-colored uniforms of the ALP. “They came just after noon and collectively raped her,” the villager says. “The village was so frightened no one could raise a voice against the ALP.”
Adds a close relative, who also wishes to remain anonymous: “The girl was raped for hours and was in such a terrible condition that we thought she would die.”
The family of Monizha, the victim of another attack described earlier in the article, chose to move to a refugee camp in Pakistan. In many respects, this is one of the ways that ALP “stabilize” villages in their vaunted Village Stability Operations: they strike so much fear into the local population that they remain silent or even leave the area. But the Gul family reacted differently:
Rather than quietly hiding her suffering, as most victims and their families do, Gul took her case to the district and provincial authorities—but to no avail. “I complained to everyone in the concerned departments, but no one heard my voice,” she says.
The Darzab district police chief even threw her father out of his office. “The district police chief never offered any help or sympathy,” she says. “Another senior policeman told us the commander (Murad Bai) is the darling of the Americans and no one can touch him.”
And that is the key to how these atrocities are carried out. The heads of the militias, whether they are officially within the Afghan Local Police, or supposedly unsanctioned, but wearing ALP uniforms (and I suspect in that case, these groups are more likely to be CIA-affiliated “A-teams” like the one headed by Zakarai Kandahari in my post from Tuesday), are working with the blessings of, and under the protection of, the US. The groups know that they will not be held accountable for anything they do and this unlimited power can lead to the atrocities that we have seen.
The US can not claim ignorance of these types of atrocities. In December of 2011, Human Rights Watch begged the US not to expand the Afghan Local Police program: Continue reading
Back in the 1970s, when various Latin American countries were disappearing their citizens, the US was closely tied to those efforts via Operation Condor.
According to Human Rights Watch, Mexico is now in the Disappearance business as part of its drug war. In a report released this week, it documents almost 140 cases where some official disappeared Mexicans. And while most of the cases appear to be corrupt local or Federal police partnering with drug cartels (that is, the problem seems to be about corruption as much as it is the state disappearing people), it also describes the Navy kidnapping groups of men, perhaps as an effort to force people to infiltrate the cartels.
Human Rights Watch documented more than 20 cases of enforced disappearances perpetrated by members of the Navy in June and July 2011. The concentration of the cases within a short time period, the similar tactics described by victims’ families and other witnesses, corroborated by photographic and video evidence, and the fact that the abductions were spread across three northern states strongly suggests that these were not isolated cases, but rather points to a clear modus operandi by the Navy. Given the number of members of the Navy that allegedly participated in these operations—at least a dozen official vehicles, according to witness accounts—and the fact that the Navy acknowledged that it detained several of the victims, it is unlikely that such operations took place without the knowledge of ranking officers.
Victims’ families and witnesses described near identical tactics in the raids. In each case, the Navy arrived in a large convoy of more than a dozen vehicles, the majority of which were marked with official insignia, along with two to four unmarked vehicles. They closed off entire streets, using vehicles as barricades. Heavily armed members of the Navy wearing masks then entered homes, often forcibly, without any search or arrest warrants. According to families, the people in Navy uniforms were not looking for individuals by name. Instead, they indiscriminately took young men, telling their families they were being brought in for questioning and would be released if they proved to be innocent.
That’s the Navy we partner with closely, the one our two CIA “trainers” were partnering with when they almost got killed last year. And remember: the Federales with ties to the Beltrán Leyva Cartel said they were investigating a kidnapping, the polite legal term for a disappearance. Remember, too, that one of the the CIA guys got exposed, in part, because he had his post office box in the same place as an earlier CIA guy managing renditions.