If it’s illegal when they do it…


Recently, parts of a Special Review by the CIA Inspector General office became generally available. It is both an illuminating and frustrating read, partly because of the nature of its content and partly because some of its content is redacted. Of what’s available to read, plenty is disturbing and really gets your mind thinking about how we are able to portray ourselves as some sort of beacon of human rights, even though this review concludes that we treated detainees “inhumane[ly]”.

Many people have been talking about this review as of late, Gleen Greenwald for one (who I thank for providing a link), and obviously many others. Many parts strongly stand out. Here are a few notes on the some of those points. (Numbers in parentheses mark page numbers that the information appears on):

  • The Special Review comments on an explanation of how EITs would be used by the CIA, which the Agency presented to the OLC on 1 August 2002. The Review includes this snippet of what they sent regarding how waterboarding is conducted:

    … the individual is bound securely to an inclined bench …. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, the air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of “suffocation and incipient panic,” i.e., the perception of drowning. The individual does not breathe water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of [12 to 24] inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. … [T]his procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. [I]t is likely that this procedure would not last more than 20 minutes in any one application.

    This was sent in conjunction with a psychological profile of Abu Zubaydah concluding that the use of EITs would cause no long term mental harm.

    However, in footnote 26, it’s noted how the OMS later admitted that the sophistication of those reviews was exaggerated, regarding the waterboarding. They also admitted that the experience of waterboarding underwent by SERE training program alumni, who were contracted to develop the EITs was in a different ballpark than how it ended up actually being used by the CIA. The OMS also stated that nothing, before its implementation by the Agency, had demonstrated that waterboarding was either efficacious or medically safe (21-22).

  • The Review provides an explanation by the Executive Branch to the Senate in 1988 (92) of how the UN Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment relates to US laws already in existence. The understanding expressed was that US constitutional guarantees prohibit ‘cruel, unusual, and inhuman treatment or punishment’ via the ‘Fifth, Eighth, and Fourteenth Amendments’. “Degrading” treatment, on the other hand, ‘would probably not be prohibited by the US Constitution’. However, the Executive Branch recommended that the Senate understand the term ‘cruel, inhuman or degrading treatment or punishment,’ as used in Article 16 of the Convention, to mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States (17).
  • A 1 August 2002 OLC legal memorandum, written for the purpose of discovering our nation’s precise prohibitions of torture, focuses on 18 USC 23402340A. The memorandum notes that certain acts may be cruel, inhuman, or degrading but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture. “Torture” in this statute is defined as an act specifically intended to inflict severe physical or mental pain or suffering. The memorandum also says that a violation of 2340 requires that the infliction of severe pain be the defendant’s ’precise objective’. The statute defines the threat of imminent death [and/or] severe physical pain or suffering to either a person directly or another person as severe mental pain or suffering. (18-19)
  • An undated and unsigned document, drafted substantial[ly] by the OLC, [a]ccording to the OGC, concluded that since Al-Qa’ida members aren’t POWs, the federal War Crimes statute 18 USC 2441 does not apply to them. The document also claims that the Torture Convention permits ‘[cruel, inhuman, or degrading treatment] in exigent circumstances’. Also, it claims that the 4th and 5th amendments do not apply extraterritorially. It also defends interrogation techniques that are applied ‘with the good faith and belief that [interrogators’] conduct will not cause [severe physical or mental pain or suffering’. (22)
  • Congressional Intelligence Oversight Committees were briefed multiple times about the CTC Interrogation Program including the fall of 2002 and early 2003. The OGC, in their Memorandum for the Record, note no objections by the debriefed groups regarding the implementation of the program. (23-24)
  • When OIG reviewed tapes of Abu Zubaydah’s waterboarding experience, they saw how the Agency used much longer and continuous applications of water than used in SERE training and as described in the DoJ opinion. One of the psychologist/interrogators interviewed for the Special Review explained the discrepancy by noting that the Agency’s technique is… ‘for real’ and is more poignant and convincing. (37)
  • Sometime between 28 December 2002 and 1 January 2003, a debriefer, untrained and unauthorized as an interrogator, racked (cocked/loaded) a handgun near Abd Al-Rahim Al-Nashiri’s head and revved a power drill while he was shackled and hooded. At another point, the same debriefer, wanting Al-Nashiri to believe he was in a Middle East nation where it was widely believed in Middle East circles that their interrogation can involve sexually abusing detainees’ relatives, threatened that if he did not talk that ‘We could get your mother in here’ and ‘We could get your family in here’. The implied Middle Eastern nation is redacted. (41-43)
  • Although an Agency Interrogator reported that another interrogator threatened Khalid Shaykh Muhammad’s children with death, the subsequent report made to him about the incident did not indicate any violation of the law. (43)
  • In June 2003, at Asabadad Base in Afghanistan, an Agency independent contractor kicked and beat to death with a metal flashlight an Afghan detainee. (78-79)
  • Prior to the CTC Program, according to many interviewed for the Special Review, [t]he Agency lacked adequate linguists or subject matter experts and had very little hard knowledge of what particular Al-Qa’ida leaders–who later became detainees–knew. When a detainee didn’t respond, the assumption was that he was withholding information; consequently, the Headquarters recommended resumption of EITs. (83)
  • Measuring the overall effectiveness of EITs is challenging for a number of reasons including: (1) the Agency cannot determine with any certainty the totality of the intelligence the detainee actually possesses: (2) each detainee has different fears of and tolerance for EITs; (3) the application of the same EITs by different interrogators may have different results; and [redacted] (89-90)

  • When Congress submitted the Torture Convention for ratification, they submitted a reservation saying that we are bound to Article 16 of the Convention to the extent that the ‘cruel, inhuman or degrading treatment or punishment’ in the Article means the cruel, unusual, and inhumane treatment or punishment prohibited by the 5th, 8th, and/or 14th Amendments. The Special Review points out that:

    Although the Torture Convention expressly provides that no exceptional circumstances whatsoever, including war or any other public emergency, and no order from a superior officer, justifies torture, no similar provision was included regarding acts of “cruel, inhuman or degrading treatment or punishment” [in our reservation]. (92)

  • According to a 2003 annual US State Department Country Report on Human Rights Practices: the United States is a leader, a partner and a contributor [of respect for human rights]. We have a deep and abiding belief that human rights are universal… their protection worldwide serves a core U.S. national interest (93)
  • Bush II, in a statement on United Nations International Day in Support of Victims of Torture said: Freedom from torture is an inalienable human right… Notorious human rights abusers … have sought to shield their abuses from the eyes of the world by staging elaborate deceptions and denying access to international human rights monitors… He calls on all nations to join the US 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. (93-94)
  • One officer told the reviewers Ten years from now we’re going to be sorry we’re doing this… [but] it has to be done. (94)
  • Although the current detention and interrogation Program has been subject to DoJ legal review and Administration political approval, it diverges sharply from previous Agency policy and practice, rules that govern interrogations by U.S. military and law enforcement officers, statements of U.S. policy by the Department of State, and public statements by very senior U.S. officials, including the President, as well as the policies expressed by Members of Congress, other Western governments, international organizations, and human rights groups. (101-102)

  • Unauthorized, improvised, inhumane, and undocumented detention and interrogation techniques were used (102)

  • The Agency faces potentially serious long-term political and legal challenges as a result of the CTC Detention and Interrogation Program, particularly its use of EITs and the inability of the U.S. Government to decide what it will ultimately do with terrorists detained by the Agency. (105)

These were just a few of the most outstanding, and perhaps outrageous points this report brought to my attention. Some of these findings are old news, but still quite shocking. Once again, like Chomsky said, If it’s illegal when they do it, it’s illegal when we do it.

What say you?

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