This issue has more than intrinsic interest, as the administration has now announced that it is pursuing moving over a hundred Guantanamo “detainees” to a prison in Illinois. (The actions of Umar Abdulmutallab on a Northwest Airlines jet on Christmas Day has thrown a monkey-wrench into the “closing” of Guantanamo, but the plans are ultimately to move the remaining Guantanamo prisoners to the U.S.) Will that include the transfer of Appendix M interrogations, and other abusive elements of the AFM protocol?

In an telephone interview on Dec. 11, Lt. Commander DeWalt explained that while “not routine,” Appendix M interrogations are conducted at Guantanamo “as authorized,” “in accordance with DOD directives and U.S. law.” He would not go into operational specifics. Officer-In-Charge of the 4th Public Affairs Detachment (Guantanamo Forward), Lt. Col. James Crabtree, who was also contacted, declined to be declined to elaborate when asked about more specific dates of operational usage. Appendix M is the portion of the 2006 revised Army Field Manual that covers “unlawful enemy combatants” who don’t meet the U.S. government’s criteria for Geneva treatment as prisoners of war.

Obama doesn’t want to call them illegal combatants anymore, so the government doesn’t call them anything, except people with lesser rights. Famously, President Obama has proclaimed, as did his predecessor, that he was against torture, and was banning it in his administration. As a result, the Obama administration closed down the CIA secret black site prisons, though not, as it turns out, all secret black site prisons. Obama also rescinded the torture memos drafted by, with the help of Dick Cheney’s legal counsel David Addington, Justice Department attorneys Jay Bybee, John Yoo and Steven Bradbury.

Levin, and replaced them with an interrogation policy oriented around the Bush-era Army Field Manual (AFM), whose latest incarnation was the brainchild of Donald Rumsfeld’s assistant, Stephen Cambone. At first, the new AFM was supposed to have a secret annex, so the “worst of the worst” could be grilled in U.S. military prisons, and not have any bleeding hearts or Al Qaeda types getting wind of what was going on. Instead, the government decided to publish the Appendix M annex openly, and when there was no subsequent protest, and the politicians dutifully saluted, the new torture policy was ready to go.

Appendix M was certainly not the old “enhanced interrogation techniques,” but it wasn’t exactly not them either. The new AFM was supposed to be better than the old one, like any new product, but in fact, old prohibitions against abusive interrogation techniques were removed, and in some cases, the techniques formally reintroduced. An example of the latter is sleep deprivation, which used to be explicitly proscribed, but is now part of Appendix M procedure. “Fear Up” procedures are strengthened, and exploitation of phobias allowed. Modes of sensory deprivation are introduced. The ban against drugs that cause serious derangement of the senses or temporary psychosis is replaced by a ban against drugs that cause “permanent damage.” Stress positions are, notably, not explicitly banned.

A behavioral science consultant (most likely a psychologist) and other medical personnel are part of a “multidisciplinary team” that monitors the Appendix M interrogation. The use of such medical and psychological personnel has been heavily criticized by ethicists from those professions, and by professional organizations, such as Psychologists for Social Responsibility, as the need for medical-behavioral monitoring is linked to the presence of abuse. In addition, psychologists in particular have been implicated in helping plan the interrogation themselves, particularly in ferreting out the prisoner’s psychological weaknesses and fears.

Battling for the Public’s Impression of the Army Field Manual

From time to time, the implications of actually using the AFM has theatened to break through the right-wing monopoly of discussion about government interrogation policy. Consider this exchange, last May, between NBC’s Chuck Todd and White House Press Secretary Robert Gibbs:

Q What is he going to say to those who make the argument, which has been made, he’s actually just changing rhetoric, he’s not changing policy that much? With Guantanamo, you’re essentially calling for a way of moving Guantanamo. You’re just changing the name.

MR. GIBBS: Well, ask that question of some of our severe detractors on this and see if you get agreement on that. I actually don’t think that’s the case. I think what the — the decision that the President made on military commissions is something that’s envisioned that’s much different than what was passed in Congress and signed by the President in late September and early October in 2006.

I think, as we’ve talked about here, enhanced interrogation techniques are something that this President has outlawed as part of the actions of this administration. I don’t think those are –

Q Yet the fine print, there’s open to interpretation about what different techniques could be used.

MR. GIBBS: How so?

Q In the argument that there’s definitely some words in there that one could interpret that it’s –

MR. GIBBS: Chuck, I don’t think you’re — let me understand — I don’t think you’re intimating that the Army Field Manual would allow one to do –

Q There have been some interpretations that there are –

MR. GIBBS: I can assure you that’s not how the Army interprets the Army Field Manual, and I assume that generals in the Army and the military that are in charge of ensuring that the procedures of the military are in line with the laws of this country — I don’t think you’re intimating that people in the Army are inferring different things about their own field manual, because I know that’s not the case.

Gibbs appears to think that the military can be trusted to ensure “the procedures of the military are in line with the laws of this country,” eviscerating the idea of Congressional oversight. What Todd calls “fine print” in the Army Field Manual — “open to interpretation” — others have called torture or abuse.

The President of the National Lawyers Guild Marjorie Cohn has stated that portions of the AFM protocol, especially the use of isolation and prolonged sleep deprivation, constitutes cruel, inhuman or degrading treatment or punishment and is illegal under the Common Article 3 of the Geneva Conventions, the U.N. Convention Against Torture and the International Covenant on Civil and Political Rights. Hina Shamsi, an attorney with the ACLU’s National Security Project, has stated that portions of the AFM are “deeply problematic” and “would likely violate the War Crimes Act and Geneva,” and at the very least “leave the door open for legal liability.” Physicians for Human Rights and the Constitution Project have publicly called for the removal of problematic and abusive techniques from the AFM.

The Center for Constitutional Rights wrote last year:

Appendix M of the Army Field Manual… allows the use of techniques such as prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners. These techniques, especially when used in combination as permitted by the AFM, constitute cruel, inhuman and degrading treatment, and in some cases, torture. These techniques have caused documented, long-lasting psychological and physical harm and were condemned by a bipartisan congressional report released last month, as well as by the Bush-appointed head of the military commissions at Guantanamo.

“In some cases, torture.” As bmaz pointed out almost exactly one year ago, when Guantanamo Convening Authority judge Susan Crawford dismissed charges against Guantanamo prisoner Mohamed al-Qahtani, telling Washington Post reporter Bob Woodward that the U.S. tortured al-Qahtani:

Crawford has exposed to bright sunlight the lie that is Barack Obama’s, and other politicians’, simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

President Obama’s Interrogation Policy and Appendix M

For quite some time, some have strongly suggested that the progressive community take up the centrality of abusive interrogations, as enumerated in the Army Field Manual, most particularly, in the latter’s “Appendix M.” The failure to do so, goes the argument, would have serious repercussions for civil liberties, not to mention the struggle for accountability over past use of torture.

As torture proper moves from offshore U.S. military and CIA/Special Operations prisons to the territory of the U.S. “homeland,” civil liberties activists and commentators must make their protest against the use of torture techniques in the Army Field Manual heard in the White House. The truth about the use of cruel, inhumane, and degrading interrogation techniques must drown out the obfuscatory fear-mongering from the Cheneyesque right-wing, who babble about how the AFM is inadequate for use by intelligence agencies in the “Terrorist War.”

Some progress has been made in the past year on this issue, and as evidenced by Stephen Rickard’s article at Huffington Post late last August. Rickard is Director at the Washington Office of the Open Society Institute. He noted that the new AFM never explicitly banned the use of the “enhanced interrogation” techniques of the old Bush administration.

It strains credulity to think this was an accident. Language in the old [1992 Army Field] Manual clearly banned wall standing and other stress positions. It was deleted [in the 2006 Manual]. The old Manual called sleep deprivation “torture.” That was deleted. Rather than banning the use of cold, the 2006 Manual only prohibits causing “hypothermia” consistent with OLC limits on using cold. The 2006 Manual prohibits “beatings … or other forms of physical pain.” But it doesn’t flatly ban assaults, which is critical because the OLC memos argue at great length that the authorized physical assaults — slapping, grabbing, walling and others — were intended to cause shock and not “pain.” The 2006 Manual does not ban using water or cramped confinement.

It is hard to understand why the use of torture techniques in the current Army Field Manual has not become a bigger issue than it has. But there has been a plethora of issues and leftover crises from the Bush years, such that it’s not surprising that some important causes have not yet broken through into public consciousness.

Last August, the Obama administration unveiled its new studied policy on interrogations, proclaiming that “the Army Field Manual provides appropriate guidance on interrogation for military interrogators and that no additional or different guidance was necessary for other agencies.”

But the Washington Post story by Anne Kornblut that reported on the new policy continued the media’s practice of misrepresenting what’s in the AFM:

Using the Army Field Manual means certain techniques in the gray zone between torture and legal questioning — such as playing loud music or depriving prisoners of sleep — will not be allowed. Which tactics are acceptable was an issue “looked at thoroughly,” one senior official said. Obama had already banned certain severe measures that the Bush administration had permitted, such as waterboarding.

Kornblut did reveal one telling piece of information about where all this interrogation business is headed:

Still, the Obama task force advised that the group develop a “scientific research program for interrogation” to develop new techniques and study existing ones to see whether they work.

How would such a “scientific research program” operate? Who would run it? How would such a program ethically study such questions as the efficacy of interrogations? Up until now, no one is discussing these matters, as societal disinterest or disinclination to take up these vital questions — questions made more salient because of the violent history of torture over the past nine years — prevents the issue from gaining traction in the competition for public evaluation. In addition, the inclusion of a “scientific research program for interrogation” conjures up memories of the decades-long U.S. military/CIA research program into mind control, hypnotism, use of LSD and other drugs in interrogation, and other dire practices associated with programs such as the CIA’s Artichoke and MK-ULTRA.

The fight to remove Appendix M and other offending policies from the Army Field Manual goes right to the heart of the struggle against militarism. Making the problems with the AFM known is part of the campaign to secure accountability for torture; that is, we can start by stopping torture from taking place now. Progressives should demand a rescission of Appendix M and other offending portions of the Army Field Manual, as well as a complete moratorium on the use of renditions for interrogation, another policy Obama has carried over from the Bush years.

Another version of this report was originally published at FireDogLake.com

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor The Public Record, has been blogging at Daily Kos since May 2005, and maintains a personal blog, Invictus. E-mail Mr. Kaye at sfpsych at gmail dot com.

This report was originally published on Truthout.org and is being republished here under a Creative Commons license.

The Department of Justice has not yet finished an internal review of the report prepared by an agency watchdog that probed several legal opinions John Yoo and two other former attorneys who worked at the DOJ’s Office of Legal Counsel (OLC) wrote for the Bush White House on torture, an agency spokeswoman said Wednesday.

“The [review] process is ongoing and we hope to have [the report] complete and released soon,” Justice Department spokeswoman Tracy Schmaler told Truthout.

The Office of Professional Responsibility (OPR) completed the report in December 2008 following a five-year investigation.

Adding to the delay in releasing the report (Attorney General Eric Holder testified before Congress last year that the report was complete and was expected be released by end of November), according to several legal sources knowledgeable about the review process, were additional responses to its conclusions that Yoo filed via his attorney, Miguel Estrada. The legal sources spoke on the condition of anonymity because the report is still classified.

If that’s true, the career prosecutor charged with reviewing the report would have to carefully review Yoo’s responses and, as Holder testified last November, “react to those responses” as well.

Estrada told Truthout he was bound by a confidentiality agreement he entered into with the Justice Department and could not comment on the claims that he submitted another set of responses on behalf of Yoo.

Schmaler said she could not comment on the rumors. But she pointed to the Office of Professional Responsibility’s “post investigation” guidelines, which details the process that takes place during the course of such investigations.

The big question is will the report be released on or before January 15?

That’s the date lawyers representing alleged “dirty bomb” plotter Jose Padilla are due to file a response to the government’s friend-of-the-court-brief, which recommended that a lawsuit Padilla filed aginst Yoo over the legal advice he gave to the Bush White House that resulted in Padilla being tortured be tossed out because the OPR report would address the issue that Yoo provided the White House with poor legal advice.

“In addition to potential discipline by a state bar, Department of Justice attorneys are also subject to investigation by the Office of Professional Responsibility (“OPR”)… OPR and the Office of the Inspector General have broad investigatory powers and can recommend discipline and even criminal prosecution, where appropriate, the government’s December 3, court filing states.

As blogger Marcy Wheeler pointed out earlier this week, “At the rate we’re going, Padilla’s lawyers will have to file their response to the boast that OPR can offer adequate discipline in cases like this, without yet learning what OPR did in this particular case.”

Believing that the report is being suppressed, a coalition of attorneys, journalists and activists to file a Freedom of Information Act request Thursday with the Justice Department to obtain a copy of the report and other documents.

Upcoming Hearings on Torture?

In an interview last month, Christopher Anders, the ACLU’s senior legislative counsel, said Senate Judiciary Committee Chairman Patrick Leahy and his counterpart in the House, John Conyers, have both said they intend to hold hearings next year when the OPR report is released.

Leahy and Conyers “said a number of times that they would have hearings when the OPR report comes out,” Anders told me. “It would be a big surprise if they didn’t conduct hearings. We fully expect them to hold hearings.”

Erica Cabot, a spokeswoman for Leahy, said it would be premature to discuss any plans for possible future hearings until the report is released.

“Adverse Findings”

The Justice Department was prepared to publicly release the report last January. But it underwent revisions after then-Attorney General Michael Mukasey and his deputy, Mark Filip, demanded that Yoo, Bybee and Bradbury be given the chance to review and respond to the findings.

“In the past, former Department employees who were subjects of OPR investigations typically have been permitted to appeal adverse OPR findings to the Deputy Attorney General’s Office,” said Assistant Attorney General Ronald Weich’s May 4, 2008 letter to Democratic Senators Dick Durbin and Sheldon Whitehouse. “A senior career official usually conducted that appeal by reviewing submissions from the subjects and OPR’s reply to those submissions, and then reaching a decision on the merits of the appeal. Under this ordinary procedure, the career official’s decision on the merits was final. This appeal procedure was typically completed before the Department determined whether to disclose the Report of Investigation to the former employees’ state bar disciplinary authorities or to anyone else.”

Legal sources familiar with an early draft of the report said it concluded that some of Yoo and Bybee’s legal work for the Bush White House rose to the level of professional misconduct and therefore warranted a disciplinary referral state bar officials. These sources said they were unaware whether OPR reached the same conclusions about Bradbury’s legal work.

Weich’s letter noted that if the appeals filed by Yoo, Bybee and Bradbury resulted in a rejection of OPR’s findings by the “career official” reviewing the document then no such referral would occur.

“Department policy usually requires referral of OPR’s misconduct findings to the subject’s state bar disciplinary authority, but if the appeal resulted in a rejection of OPR’s misconduct findings, then no referral was made,” Weich’s letter said. “This process afforded former employees roughly the same opportunity to contest OPR’s findings that current employees were afforded through the disciplinary process.”

Weich added that the initial draft of the report was also shared with the CIA for a “classification review,” and the agency, having reviewed the findings, “requested an opportunity to provide substantive comment on the report.”

Durbin and Whitehouse, in a statement last May, said they “will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter.”

A CIA spokesperson did not return calls for comment about the agency’s response to the report.

Weich’s letter to Durbin and Whitehouse was sent in response to queries by the senators last March about revelations that Bradbury oversaw OLC’s review of the report in late 2008, despite the fact that he was a subject of OPR’s investigation and was also acting head of OLC at the time.

Three months before Bush exited the White House, Bradbury, in a “memorandum for the files,” renounced several legal opinions drafted by Yoo and Bybee.

Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”

Bradbury wrote another memo five days before Bush left office last January, in which he once again repudiated Yoo’s legal opinions. It would appear that this memo was in response to the OPR report. Bradbury said in the Jan. 15 memo that the flawed theories by Yoo in no way should be interpreted to mean that Justice Department lawyers did not “satisfy” professional standards.

Durbin and Whitehouse said they believed Bradbury’s “memorandum for the files” made it a “conflict-of-interest” for him to participate in the formal review process.

But Weich said, “Because Mr. Bradbury’s participation in that process was transparent, OPR advised that it can evaluate the OLC response with the knowledge of Mr. Bradbury’s participation just as it would evaluate a response from anyone whose actions were within the scope of OPR’s investigation.

“Therefore, OPR does not believe that Mr. Bradbury’s participation in the OLC response was improper,” Weich said.

Rather, Bradbury wrote, “In the wake of the atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation.”

This image of Khalid Sheikh Mohammed was taken in July 2009 under an agreement with Guantanamo prison camp staff that lets Red Cross delegates photograph detainees and send photos to family members.

Khalid Shaikh Mohammed and the corporate “mainstream” media make quite a pair.

We’re hearing a very “balanced” debate over whether KSM should be tried in New York City, and whether the most insane objections to that proposal are really insane or not. But what are we not hearing?

We’re not hearing that trying criminals for the crime of 9-11 ought to have been what we did years ago, rather than waging wars in response to a crime.

We’re not discussing the possibility that had alleged 9-11 criminals been tried years ago rather than being imprisoned and tortured together with hundreds of innocents depicted as subhuman monsters, the “war on terror” might have been replaced with simply the wars on Iraqis and Afghans and Pakistanis.
What effect might that have had on Americans’ willingness to surrender their Bill of Rights? We aren’t hearing about that.

Aside from a column by my friend Ray McGovern, not of course published by the corporate media, what are we hearing or seeing about KSM’s motive?
Isn’t motive a traditionally important element in a criminal investigation? We’re told that putting KSM on trial would give him a platform for propaganda, but we’re not told what that propaganda might be.

If it were really so pernicious, why not expose it and refute it? Isn’t that what societies that believe in free speech do with misguided speech? Don’t they defeat it with more and better speech? Or is that only when it can be done without using the word “Israel”?

Outside of progressive blogs, we’re not hearing that giving a somewhat fair, if less than speedy, trial to those most likely to plead guilty or be convicted, and a less fair military trial to others, and no trial at all to others still, reveals this show of justice to be a sham.

If KSM were acquitted, President Obama would order him imprisoned outside the rule of law until he dies. If he is found guilty, as everyone universally expects, he may be officially murdered by the United States, motivating others to take up arms against a nation that wages and funds illegal wars, imprisons people without charge, tortures, kidnaps, renditions, and executes.

If the justice system is bent to ensure that KSM is convicted or permitted little opportunity to speak, will that bending have any permanent repercussions for our justice system? Or, to move in the other direction, having determined that “military justice” is not good enough for alleged mass murders, must we continue to pretend that it is good enough for members of the military?

Can we not admit everyone into a single and improved justice system? We’re not hearing that discussion.

An improved justice system would require the admission into court of videos of all confessions and interrogations. This would not include admissions made to a journalist prior to imprisonment, as in the case of KSM and Al Jazeera, but would include all interrogations since that time.

And in KSM’s case it might include video of the “interrogation” of his children. Years ago, allegations were made that the United States had tortured his children, including in little-heard-of manners, such as locking a child in a box with a supposedly deadly insect.

More recently, secret memos emerged showing the United States to have authorized just those techniques. If this were a story about missing sex tapes, the media would be all over it. A story about the possible torture of children is far less interesting.

It might open up difficult questions, such as whether someone who has been endlessly tortured, and whose children may have been tortured, can — while still in the custody of the torturers — give an un-coerced confession.

Questions might even have to be asked about leniency in sentencing for someone who has already served time and been horribly tortured.

If this were a story about a singer or actor or athlete, we’d see investigations of the time KSM spent attending college in North Carolina. Why didn’t the Americans he lived among persuade him of how horrible it would be to murder people in this country?

Our media pundits are completely incapable of asking such a question without either blaming KSM’s American acquaintances for his crimes or declaring KSM to be an inscrutable monster whose thinking is of absolutely no interest.

Other questions might be asked as well, such as why Dick Cheney and his supporters never talk about the two memos anymore. Remember the two memos that Cheney claimed would show that the torture of KSM and others revealed important information that saved lives.

The memos are now public and show nothing of the sort.

Nor was torture needed in order to prosecute KSM himself. In fact, as Marcy Wheeler has pointed out, the ability of the government to prosecute him without using evidence obtained through torture demonstrates that torture was not needed for that purpose.

But why are we not talking about the two purposes torture actually serves? We know it does not produce useful information, but we also know that it produces desired lies, such as agreement to false rationales for war. And we know that it scares people, both people who fear they might be tortured and people who fear the wild beasts depicted as reachable only through torture.

As Glenn Greenwald has touched on, behaving as though terrorized, irrationally unable to believe an alleged terrorist can be held in a cell and tried in a court, is to give in to the terrorism. Worse, it is to advance it.

More Americans are more terrorized following TV discussions of KSM’s possible prosecution than were beforehand, because the voices on the TV promote the terror rather than the prosecution.

We are hearing about the need to avoid evidence obtained through torture. But at the same time we are hearing absolutely nothing about the need to prosecute the torturers and the creators of the torture program, at least one of whom, John Yoo, is given a platform as one of the disinterested media commentators in the MSM.

This failure is an ideal way to create more KSMs. Why don’t we talk about it?

David Swanson is the author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union by Seven Stories Press.  You can order it and find out when tour will be in your town: http://davidswanson.org/book. [This article previously appeared at Afterdowningstreet.org.]

But according to the American Civil Liberties Union, “U.S. policy continues to fall short of ensuring full compliance with the treaty.”

For example, the organization said that an appendix to the Army Field Manual (AFM) can still facilitate cruel treatment of prisoners and detainees at home and abroad.

The Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment (CAT) is the most comprehensive international human rights treaty dealing exclusively with the issues of torture and abuse. It came into effect in 1987, and has been ratified by 146 countries.

The treaty was initially signed by the Ronald Reagan administration in 1988 and was ratified by the Senate on Oct. 21, 1994, but with reservations, understandings and declarations (RUDs) that failed to make the treaty fully applicable.

The administration of former President George W. Bush exploited these RUDs to justify abusive interrogation policies, including the use of waterboarding, stress positions, extreme isolation and sleep deprivation.

In 2006, the Committee Against Torture, which reviews country compliance with CAT, criticised the U.S. for failure to uphold the treaty and called for full compliance.

After taking office, President Barack Obama issued an executive order prohibiting torture. But under an appendix to the 2006 revised U.S. Army Field Manual – the most recent edition – practices considered incompatible with CAT and international law are still allowed. These include force-feeding, psychological torture, sleep and sensory deprivation.

And under Appendix M to the AFM, detainees can be “separated” or held in isolation from other detainees for 30 days, or longer with authorisation, and allowed only four hours of continuous sleep per night over 30 days, which can be prolonged upon approval.

Jamil Dakwar, director of the ACLU Human Rights Programmr, told us, “The president’s first nine months in office have signaled a policy shift on human rights and commitment to the rule of law. Certainly his speech to the U.N. and his Nobel Peace Prize have raised the bar of expectation as to his commitment to advancing human rights at home and abroad.”

But, he added, “There is still much more to do, including honouring and expanding U.S. human rights commitments and fully incorporating them into domestic policy. U.S. credibility abroad and commitment to human rights at home will be judged by deeds, not by words.”

“What is needed now is taking concrete actions to translate these commitments to a robust human rights policy. A new presidential executive order to reconstitute the Inter-Agency Working on Human Rights would be an important step forward,” Dakwar said.

“To fulfill its human rights requirements, the administration must also fully investigate crimes of torture committed in violation of U.S. and international law and withdraw the Army Field Manual’s Appendix M,” he added.

Since his inauguration, President Obama has helped restore U.S. standing on human rights by issuing executive orders to close the Guantánamo detention centre, prohibiting CIA prisons and enforcing the ban on torture, joining the U.N. Human Rights Council, signing the Convention on the Rights of Persons with Disabilities (CRPD), and prioritising the ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

While welcoming these steps, the ACLU is calling for additional concrete measures to reassert U.S. leadership on human rights, including the full investigation of torture crimes, abandoning the Guantánamo military commissions and renouncing the practice of holding detainees indefinitely without charge or trial.

The ACLU’s Dakwar told us he “expected the administration to announce concrete plans to implement and enforce ratified human rights treaties and the resurrection of the Interagency Working Group on Human Rights – disbanded during the Bush administration – to coordinate and promote human rights within domestic policy.”

He said, “There is hope and expectation within the human rights community that the president will make the announcement on resurrection of the Inter-Agency Working Group on Human Rights as soon as Dec. 10 – international human rights day and the day he will be receiving the Nobel Peace Prize.”

He noted that shortly after the U.S. elections, the ACLU and more than 50 U.S.-based human rights, civil rights, civil liberties and social justice organizations launched the Campaign for a New Domestic Human Rights Agenda, which identified concrete goals for pushing the administration and Congress to strengthen the U.S.’s commitment to human rights at home.

The campaign have four primary objectives. First is re-creation of the Interagency Working Group on Human Rights, first initiated in 1998 by President Clinton through an executive order, but effectively disbanded by the Bush administration in 2001. The call is for a new executive order to be issued with an improved and strengthened mandate.

Second is transformation of the U.S. Civil Rights Commission into a U.S. Civil and Human Rights Commission. The current commission was created in the 1950s with the mandate of monitoring and enforcing compliance with U.S. civil rights law.

In recent years, it has grown dysfunctional and been largely discredited. Currently there is a push to re-form the commission. The Leadership Conference for Civil Rights has taken the lead on the reform effort, and, along with the Campaign, has called for a new commission with a mandate to monitor the U.S.’s compliance with its human rights (as well as civil rights) commitments.

Third is implementation of recommendations by the U.N. Committee on the Elimination of Racial Discrimination (CERD) and to create a plan of action to enforce them at the domestic level.

Lastly, the Campaign is calling for implementation and coordination of human rights on the state and local level, particularly in partnership with state and local human rights and civil rights commissions.

Rage Against the Machine protesting Guantanamo Bay at the Reading festival. Photo: Chiaki Nozu/Filmmagic.com/Getty Images

Well, that took a while. Nearly a year after George W. Bush’s Republican party was voted out of office, and at least five years after reports first surfaced that music was being used in “War on Terror” facilities in Iraq, Afghanistan and Guantánamo as part of a package of “enhanced interrogation technique,” — which, in any world other than the reality-defying one inhabited by Dick Cheney and Donald Rumsfeld, would have been defined as torture — several noted musicians have spoken out to condemn the practice.

As was reported widely yesterday, REM, Pearl Jam, Trent Reznor, Tom Morello, and other artists including Jackson Browne, Billy Bragg, Michelle Branch, T-Bone Burnett, David Byrne, Rosanne Cash, Marc Cohn, Steve Earle, the Entrance Band, Joe Henry, Bonnie Raitt, Rise Against, and The Roots launched a formal protest against the use of music as torture.

In a statement, Tom Morello said, “Guantánamo is known around the world as one of the places where human beings have been tortured — from water boarding, to stripping, hooding and forcing detainees into humiliating sexual acts — playing music for 72 hours in a row at volumes just below that to shatter the eardrums. Guantánamo may be Dick Cheney’s idea of America, but it’s not mine. The fact that music I helped create was used as a tactic against humanity sickens me — we need to end torture and close Guantánamo now.”

REM added, “We signed onto the campaign in complete support of President Obama and the military leaders who have called for an end to torture and to close Guantánamo. As long as Guantánamo stays open, America’s legacy around the world will continue to be the torture that went on there. We have spent the past 30 years supporting causes related to peace and justice — to now learn that some of our friends’ music may have been used as part of the torture tactics without their consent or knowledge, is horrific. It’s anti-American, period.”

In a phone call, Rosanne Cash told the Washington Post, “I think every musician should be involved. It seems so obvious. Music should never be used as torture.” Cash said she reacted with “absolute disgust” when she heard about it, adding, “It’s beyond the pale. It’s hard to even think about.”

The protest was timed to coincide with a Freedom of Information Act request filed by the National Security Archive, an independent research institute in Washington D.C., which is seeking the declassification of all records related to the use of music in interrogation practices. It also coincided with a recent call by veterans and retired Army generals to shut Guantánamo, and TV and radio ads, which were launched this week by the National Campaign to Close Guantánamo, led by Tom Andrews, a former congressman from Maine.

Nevertheless, with the exception of Tom Morello (of Rage Against The Machine), whose music was used for torture, and who has been complaining about it since 2004, and Trent Reznor (Nine Inch Nails), whose music was also used, and who expressed his outrage last year when he first heard about it, few musicians have taken the issue on board before now.

Last July, when David Gray spoke out about his disgust that his music was used for torture, and the British-based legal charity Reprieve began campaigning about it, there was little interest. Christopher Cerf, who wrote the music for Sesame Street, (a music torture favorite) complained, but last December, when I wrote a detailed article about it, “A History of Music Torture in the ‘War on Terror,’” I surveyed a generally indifferent industry, in which some of those whose music had been used were indifferent (Bob Singleton, for example, who wrote the theme tune to Barney the Purple Dinosaur, another music torture favorite), others (Metallica) were ambivalent, and others (Drowning Pool, for example) were positively gleeful about it.

From many others (including AC/DC, Aerosmith, Christina Aguilera, the Bee Gees, Neil Diamond, Don McLean, James Taylor, Limp Bizkit, Marilyn Manson, Meatloaf, Pink, Prince, Queen, the Red Hot Chili Peppers, Britney Spears and Bruce Springsteen) there came nothing but an inappropriate silence, and even Eminem, whose anti-Bush credentials were clear from his songs “Mosh” and “White America,” remained quiet, even though, as the British torture victim Binyam Mohamed explained about his time in the CIA’s “Dark Prison” in Kabul in early 2004:

It was pitch black, and no lights on in the rooms for most of the time … They hung me up for two days. My legs had swollen. My wrists and hands had gone numb … There was loud music, Slim Shady and Dr. Dre for 20 days. I heard this non-stop over and over, I memorized the music, all of it, when they changed the sounds to horrible ghost laughter and Halloween sounds.  It got really spooky in this black hole … Interrogation was right from the start, and went on until the day I left there. The CIA worked on people, including me, day and night. Plenty lost their minds. I could hear people knocking their heads against the walls and the doors, screaming their heads off … Throughout my time I had all kinds of music, and irritating sounds, mentally disturbing. I call it
brainwashing.

Don’t get me wrong: it’s good that so many diverse groups and individuals are now making their voices heard, as part of a push to close Guantánamo as soon as possible (and to try to hold President Obama to his promise to close the prison by January 22, 2010), but it would have had more impact before last November, when the torturers were still in the White House.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

A U.S. soldier undergoing SERE training.

Professor Shane O’Mara at Trinity College Institute of Neuroscience in Dublin has written an article which has caught the attention of the mainstream media.

Associated Press reporter Pamela Hess described Prof. O’Mara’s article,”Torturing the Brain: On the folk psychology and folk neurobiology motivating ‘enhanced and coercive interrogation techniques’” (PDF), as showing that the CIA’s “severe interrogation techniques appear based on… a layman’s idea of how the brain works as opposed to science-based understanding of memory and cognitive function.” (Bmaz who blogs at Emptywheel also reported on this.)

What neither Ms. Hess nor Professor O’Mara apparently realized is that in conducting his research for his review on how the CIA’s “enhanced interrogation techniques” caused debilitating damage to the brain and nervous system — producing confabulation more readily than information — one of the scientific papers O’Mara relied upon was itself produced by a CIA researcher. Such close participation between CIA and military researchers and the world of stress research adds a sinister dimension to the production of the OLC memos, which Professor O’Mara otherwise believes were based on naive “folk” beliefs and a faulty neuropsychobiological model.

But this is not the case. The CIA was well-aware of the type of research he cites — because it was a major contributor to such research!

As I reported last week, CIA Experiments on US Soldiers Linked to Torture Program (later picked up by Truthout), I showed how a Yale psychiatrist, and researcher for the National Center for Post-traumatic Stress Disorder, had received hundreds of thousands of dollars to do research on the psychological and physiological effects of stress produced by SERE techniques. The researcher, Charles A. Morgan, III, has identified himself, in certain settings, as a CIA behavioral scientist.

(SERE stands for Survival, Evasion, Resistance and Escape, and is the name for the military survival schools that provide select members of the armed forces with “stress inoculation” training by subjecting them to a reduced amount of torture and captivity. The CIA’s EITs were famously reverse-engineered by SERE psychologists from the techniques utilized during SERE training.)

In the AP article, Hess writes, “A 2006 Intelligence Science Board report on interrogation also noted possible negative effects of certain methods.” But Hess doesn’t mention, nor does she likely know, that one of the primary members on the ISB board that produced the report was the same Dr. Morgan.

… in the Information Science Board (ISB) document, Educing Information [PDF] — which was heavily drawn upon by President Obama’s task force on interrogations, for recommendations on the interrogations issue — Dr. Morgan is identified as a member of the 11-person “Government Experts Committee,” and listed as affiliated with the Intelligence Technology Innovation Center (ITIC). According to Intelligence Online, ITIC is “a research organization under the CIA’s authority,” which “answers directly to the CIA’s Science and Technology directorate.”

Research on SERE Techniques and the OLC Memos

The “CIA Experiments” article described some of the research Dr. Morgan and his associates have conducted using SERE trainees, many of them Special Forces personnel. (Professor O’Hara cites one of Morgan’s articles himself — see footnote 9 to his paper.) In a June 2000 article, “Assessment of Humans Experiencing Uncontrollable Stress: The SERE Course,” in Special Warfare (PDF), Morgan and his Special Operations psychologist co-author cite “recorded changes in cortisol levels” among individuals subjected to SERE techniques as “some of the greatest ever documented in humans.” As Professor O’Mara notes in his own essay, a “substantial increase in cortisol levels has a deleterious effect on memory.” The same article described testosterone levels falling in male subjects to below castration levels.

Another article by Morgan and his team looked at dissociative psychological effects of SERE techniques upon human subjects. (Dissociation produces symptoms such as depersonalization, derealization, psychic or emotional numbing, and general cognitive confusion.)

RESULTS: In study 1, 96% of subjects reported dissociative symptoms in response to acute stress. Total scores, as well as individual item scores, on the dissociation scale were significantly lower in Special Forces soldiers compared to general infantry troops. In study 2, 42% of subjects reported dissociative symptoms before stress and 96% reported them after acute stress.

Professor O’Mara’s essay is an excellent brief review of the relevant literature on stress, as it pertains to the kinds of torture conducted by the CIA, and its effects upon memory, and the presumed ability to produce accurate information. It easily deserves wide dissemination. But evidence of CIA participation in the very research that was suppressed in the OLC memos shows that the conclusions drawn in the torture memos were not simply due to “bad faith” lawyering. As I wrote in my original article:

The frenzied search for data on waterboarding, sleep deprivation, isolation, confinement in a small box, etc., to submit to OLC attorneys making legal determinations on whether proposed interrogation techniques constituted torture, was a kabuki organized by the CIA. The OLC attorneys involved — John Yoo, Stephen Bradbury, Jay Bybee, and others — were witting or unwitting partners in suppression of CIA research on torture (as future investigations will disclose). Given the participation of members of the Office of the Vice President, particularly David Addington and Vice President Cheney himself, in the promulgation of the torture program, and the composition of the memos, it seems likely they were also involved in the suppression of this material. As a result, the memos produced authorizing the “enhanced interrogation techniques” were composed as the result of fraud and bad faith, the result of a criminal conspiracy to implement illegal torture techniques.

In this earlier article, I had taken Dr. Morgan at his word, as reported in a 2007 New York Times article, that he was incredulous at how SERE techniques could have migrated over to the torture program. But, as I recently discovered (H/T to fellow psychologist Brad Olson), the CIA scientist had a different take on the uses of SERE research in an essay in the 2006 book, Military Psychology, Clinical and Operational Applications (p. 252):

The SERE platform offers a unique opportunity to evaluate old and new assessment techniques under conditions that are more realistic than traditional laboratories….

The SERE training environment affords the military services the opportunity to collaborate with various other government agencies in exploring old and new techniques in gathering human intelligence.

The O’Mara essay and AP article appear only a few weeks after Physicians for Human Rights released a “white paper” highlighting evidence of illegal human experimentation on U.S.-held “terrorism” prisoners undergoing torture. The allegations of torture experimentation are consistent with reports of CIA experimentation upon Abu Zubaydah, and of the Pentagon running an interrogation “Battle Lab” at Guantanamo. In his book, Oath Betrayed: America’s Torture Doctors, bioethicist Steven Miles calls Mohammed al-Khatani’s interrogation an experiment: “The peculiar content and structure of this document makes sense if it is the log of research on coercive interrogation….” (p. 176).

Experimentation upon subjects to further “scientific” understanding of the effects of torture is also not new. In the 1950s, the CIA and Pentagon funded top psychologists and psychiatrists in research upon the effects of SERE training. These researchers established a protocol for psychological torture, based on torture tactics that induced “debility, dependency, and dread.” (See West LJ., Medical and psychiatric considerations in survival training. In: Report of the Special Study Group on Survival Training (AFR 190 16). Lackland Air Force Base, Tex: Air Force Personnel and Training Research Centers; 1956.) This protocol was later incorporated into an early 1960s CIA (KUBARK) interrogation manual.

It is not enough to understand what research the Office of Legal Counsel attorneys failed to include in their infamous torture memos. One must understand why this research was not included, and who was involved in that. The evidence points to a deliberate attempt to implement and then hide a torture program, whose very basis for existence may have been, in part, to study the effects of torture upon involuntary subjects, in order to implement (or hide) an updated protocol for coercive interrogation.

Only a full, wide-ranging, and open investigation — including not only politicians, academics, lawyers, and blue-ribbon, distinguished experts, but representatives of human rights organizations, church and labor leaders, and other important societal participants — will, given full subpoena power, be able to get to the bottom of this sinister program that seized hold of the governmental apparatus, and steered it towards brutality and a catastrophic breakdown of law.

This report was originally published at FireDogLake.com.

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor The Public Record, has been blogging at Daily Kos since May 2005, and maintains a personal blog, Invictus. E-mail Mr. Kaye at sfpsych at gmail dot com.

So, when I read that the Georgetown University law school prof had a new book out, I quickly got my copy. I wasn’t disappointed, and you won’t be either.

Cole’s new book is two things: First, a collection of six of the previously-published “torture memos” written between 2002 and 2006 by lawyers at the Bush-era Office of Legal Counsel. Yes, the ones that used law to justify the “enhanced interrogation techniques” now so well known. And, second, Cole’s commentary on this distortion of the law and its implications for our society

This book is a must-read for the latter alone. In chillingly uncomplicated prose, Cole argues that these memos are the real “smoking gun” in the torture controversy because they demonstrate that the culpability lies not merely with the CIA interrogators who may have exceeded Justice Department legal guidance, but with the legal guidance itself – the “incredible arguments advanced to give them a green light.”

As we all now know, that sloppy and craven legal analysis  contorted the law to authorize clearly illegal CIA tactics. And it continued to do so in secret even after the Bush Administration sought to assure the public that it was abiding by the very laws it was breaking.

Yet, at about the same time as the torture memos were being published – and the nation prepared to mark the eighth anniversary of the 9/11 attacks –those who ordered and wrote these memos were busily defending themselves.

Or, more accurately perhaps, using the straw-man of an investigation of the CIA to deflect attention away from their conduct.

Exhibit A is John Yoo, now a law professor at the University of California’s law school, who was the Bush Administration’s go-to guy for legal justifications. In a recent op-ed, Yoo warns us about the dire consequences that await the nation as the Justice Department pursues its investigation of CIA operatives.

Yoo invokes Jimmy Carter, who he describes as “a young fresh face” campaigning for the presidency by attacking the CIA: “Our government should justify the character and moral principles of the American people, and our foreign policy should not short-circuit that for temporary advantage,” Carter says. He promises to never “do anything as president that would be a contravention of the moral and ethical standards that I would exemplify in my own life as an individual.”

“He wins the election and begins to decimate the intelligence agencies,” Yoo writes, and then recalls, “The Carter administration’s national-security record should not serve as a model for any president. But unless Obama changes course, he risks duplicating the intelligence disasters of the ’70s, and endangering the nation.”

Yoo reminds us that several of the detainees the CIA tortured “were directly involved with the planning and execution of the attacks on Sept. 11, 2001. They were captured at a time when our government feared a second wave of attacks.”

“Our nation’s leaders made the difficult decision to use coercive interrogation methods to learn as quickly as possible what these hardened al-Qaida operatives knew,” he writes, adding:

“As one of many government lawyers who worked on these counterterrorism programs, I can attest to the terrible pressure of time and events in the months after the Sept. 11 attacks. Knowledgeable officials expected that al-Qaida would try again — soon — and in a more devastating fashion.”

And, then, in true Dick Cheney mode, he admonishes: “As we pause to remember the Sept. 11 attacks eight years later, fair-minded people should take heart that there has been no follow-up attack in the United States. To the contrary, several plots have been foiled and the terrorists are on the run. This was not the result of luck — it is because of the hard work of members of the military and our intelligence agencies.”

“Their reward,” he laments, “is an open-ended investigation, and in some instances the disturbing reopening of cases closed by career prosecutors.”

“Even the most fervent antiwar activists should welcome an effective intelligence service. If the CIA had accurately judged Iraq’s lack of WMD in 2003, the war might not have occurred. If the CIA had decapitated al-Qaida’s leadership in the 1990s (the plans were vetoed by President Bill Clinton), the 9/11 attacks may have been headed off and the invasion of Afghanistan rendered unnecessary,” he writes.

“Persecuting the CIA risks another (Pearl Harbor) or major intelligence failure,” Yoo concludes.

But, hold on now, this is not about an investigation of the CIA. That’s John Yoo’s smoke-screen. This is about a bunch of highly-educated but ideologically-challenged lawyers who exploited our post-9/11 hysteria to try to rewrite the Constitution.

Paradoxically, it is precisely during times of such hysteria that we most urgently need the Constitution and its principles of fairness and equity. Resisting – not caving to — the temptation to compromise those principles would have been the benchmark for discovering those who truly believe.

I first came across David Cole several years ago, when he was doing a lot of advocating on behalf of donors to Muslim-oriented charities whose organizations were shut down by our Treasury Department with virtually no legal due process on vaguely-defined suspicions that they were supporting terrorist causes.

Cole likened that situation to the guilt-by-association tactics of the McCarthy era. He never weighed in on the guilt or innocence of those charities. But he was downright bulldoggish in his insistence that this was precisely the time we should apply the rule of law – not the law of the Wild, Wild, West soundbite. A position the Obama Administration has now also embraced.

For me, that defines a lawyer’s lawyer. For our country, it defines the future of our Constitution and the sacred legal structures that keep us from flying apart.

John Yoo is far from any lawyer’s lawyer.

William Fisher is a regular contributor to The Public Record. He has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years and served in the administration of President John F. Kennedy. He reports on a wide-range of issues for numerous domestic and international newspapers and online journals. He blogs at The World According to Bill Fisher.

Their letter to the president is particularly self-serving for three of the directors (Michael Hayden, Porter Goss, and George Tenet), who would presumably be the subject of any investigation, and simply self-aggrandizing for the others (John Deutch, James Woolsey, William Webster, and James Schlesinger), whose stewardship of the CIA since the early 1970s has contributed to the Agency’s loss of influence and credibility.

The key to managing a complex organization such as the CIA is based on the integrity and competence of the director and his senior management. These traits were certainly lacking during the two decades these “magnificent seven” were at the helm.

The letter itself represents a stunning display of irrelevance and wrong-headedness. The former directors argue, for example, that any reopened investigation would damage the intelligence community’s ability to obtain cooperation of foreign intelligence agencies.

In fact, the opposite is the case. Foreign intelligence agencies have been holding back their liaison activities and their cooperation with the CIA because of the crimes associated with secret prisons, torture and abuse, and extraordinary renditions. It is quite unbelievable that CIA leaders decided to compromise the governments and intelligence services of the European community by locating secret prisons and using logistical facilities within their borders. It is very unlikely that any member of the European Union will cooperate with such CIA activities in the future.

The seven directors argue predictably that career prosecutors have already investigated the relevant cases where “Agency officers appeared to have acted beyond their existing legal authorities,” but with the exception of a prosecution of a CIA contractor there was a determination that prosecutions were not warranted. They do not mention that a political appointee in the Bush administration, Paul McNulty, was responsible for these decisions and they do not refer to the unconscionable politicization of the Bush administration’s Justice Department.

Finally, the letter argues that any criminal investigation would “seriously damage the willingness” of intelligence officers to “take risks to protect the country.”

This is arrant nonsense! One of the reasons why the CIA had to resort to independent contractors, particularly former military officers and enlisted men, to staff secret prisons and conduct torture and abuse was because of the opposition of professional intelligence officers to the policies of the Bush administration. An investigation would not compromise the national security interests of the United States, although it would cause grave embarrassment to those who carried out these policies and would perhaps guarantee that these actions would never again be permitted.

It is also worthwhile to examine those individuals who signed the letter to the president.  Jim Schlesinger abolished the Office of National Estimates, the most prestigious Agency department for intelligence analysis, because of its independence and created a group of National Intelligence Officers who would be more responsive to the policy demands of the White House and the National Security Council.

Upon arrival at the CIA in 1973, he assembled the CIA’s Soviet analysts and told them to “stop fucking Richard Nixon.” Judge William Webster obstructed the Walsh investigation of Iran-Contra, particularly the case against a high-ranking operations officer who was responsible for illegal arms deliveries to the Contras. The officer was indicted by a Grand Jury for making false statements and obstructing the investigations of the CIA’s Inspector General as well as the work of the Tower Commission, but the case was dismissed after Webster refused to release necessary documents.

Jim Woolsey and John Deutch were short-lived directors who weakened the Agency’s role in collecting intelligence and conducting analysis in the key fields of arms control and international terrorism. Woolsey’s unwillingness to punish any of the eleven senior officers who were responsible for allowing Aldrich Ames, the notorious long-spy for the Soviet Union, to move into sensitive clandestine positions over a ten-year period led the Clinton administration to force his resignation.

Deutch’s security breaches at the CIA included the compromise of the most sensitive clandestine operations of the directorate of operations.  Deutch had introduced sensitive intelligence to his home computer that had been used for accessing pornographic sites, but he blamed others in the household for the compromise.

Tenet, Goss, and Hayden were directly involved in the decision-making that led to the creation of secret prisons in Europe, Southwest Asia, and the Far East; the use of torture and abuse; and the rendition of individuals who were guilty of no crimes against the United States. Tenet, moreover, was directly responsible for the false intelligence given to the White House to support the use of force authorization against Iraq in 2002 as well as the phony speech given by Secretary of State Colin Powell to the United Nations in 2003.

Goss worked assiduously to cover-up the 9/11 accountability report of the CIA’s Inspector General. His handpicked executive secretary, the third highest position at the CIA, was Kyle “Dusty” Foggo, who is currently serving a jail sentence for steering Agency contracts to a lifelong friend who bribed former congressman Randall “Duke” Cunningham.

Hayden entered the CIA under a cloud because, as director of the National Security Agency, he approved the warrantless eavesdropping program that began after 9/11.  And he left the CIA under a cloud this year because of his success in compromising the work of the Office of the Inspector General.

President Obama and Attorney General Eric Holder must ignore the efforts of the former CIA directors and many others to find the truths that would be part of any investigation of activities that went beyond any legal authority. Twenty-five years ago, CIA director William Casey tried to cover-up crimes that were committed in the remote El Salvadoran village of El Mozote. Eventually the Salvadoran government established a Truth Commission to investigate the crimes that had been dismissed by the Reagan administration.

Today, the United States needs to create a Truth Commission to understand the crimes that were committed over the past decade.

Melvin A. Goodman, a senior fellow at the Center for International Policy and adjunct professor of government at Johns Hopkins University, is The Public Record’s National Security and Intelligence columnist. He spent 42 years with the CIA, the National War College, and the U.S. Army. His latest book is Failure of Intelligence: The Decline and Fall of the CIA.

George Tenet is one of seven former CIA directors who sent a letter to President Obama Friday urging him to stop a Justice Department review into torture.

Seven former directors of the CIA sent a letter to President Barack Obama Friday asking him to take the unprecedented step of personally blocking a Justice Department “review” of cases where agency officers and contractors allegedly exceeded legal guidelines during the interrogations of “war on terror” detainees.

The ex-directors claim the investigation authorized last month by Attorney General Eric Holder into will “only help Al Qaeda elude US intelligence and plan future operations” and “will continue to make it harder for intelligence officers to maintain the momentum of operations that have saved lives and helped protect America from further attacks.”

Those statements are nearly identical to warnings made by Republican lawmakers in recent weeks, which have been disputed by veteran interrogators and a former Bush administration official as a clear-cut attempt to shield top Bush officials who came up with the torture policies, in violation of anti-torture laws, from scrutiny.

Three of the former directors—George Tenet, Michael Hayden and Porter Goss—were personally involved in the policy discussions and decisions during George W. Bush’s tenure that lead to the implementation of “enhanced interrogation techniques.” According to recently released documents, CIA headquarters in Langley micromanaged the torture of at least one high-value detainee, Abu Zubaydah, in 2002 when Tenet was CIA director.

Another former director who signed the letter, James Schlesinger, conducted an investigation into the abuse and torture of prisoners at the infamous Abu Ghraib prison in Iraq.

The other three former directors are John Deutch, R. James Woolsey, both of who served in the Clinton administration and William Webster, a former federal judge who served as CIA director in the administration of George H.W. Bush and is currently chairman of the Homeland Security Advisory Council. Tenet also served as CIA director during the last three years of the Clinton administration.

Repeatedly invoking 9/11 in their letter, the former CIA directors asked Obama to exercise [his] authority to reverse Attorney General Holder’s August 24 decision to re-open the criminal investigation of CIA interrogations that took place following the attacks of September 11.”

Their request comes weeks after former Vice President Dick Cheney, during an interview with Fox News, said Obama, as the “chief law enforcement officer of the administration,” had the authority to thwart the Justice Department investigation.

“I think if you look at the Constitution, the President of the United States is the chief law enforcement officer in the land. The Attorney General’s a statutory officer. He’s a member of the cabinet. The President’s the one who bears this responsibility.

“And for him to say, ‘gee, I didn’t have anything to do with it,’ especially after he sat in the Oval Office and said this wouldn’t happen, then Holder decides he’s going to do it.”

But Cheney and the former CIA directors have taken an expansive view of the Constitution, specifically Article II, which says, “The executive Power shall be vested in a President of the United States.”

In common practice and understanding, however, the attorney general is the nation’s chief law enforcement officer. The attorney general “evolved over the years into chief law enforcement officer of the Federal Government,” according to the Department of Justice’s website.

During the Bush administration, the Department of Justice was politicized and former Attorney General Alberto Gonzales used the agency to advance the policies of the Bush administration, an episode noted by no less than four investigations conducted by Justice Department watchdogs.

Furthermore, contrary to what Cheney claims, Obama never said there wouldn’t be an investigation into torture. What he said, and what his political appointees have echoed to the dismay of civil liberties groups and some Democrats, is that he had hoped to “look forward” not “backwards” and that those CIA interrogators “who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” He also added that the decision was ultimately up to Holder.

Jameel Jaffer, director of the ACLU’s National Security Project, said if there is a problem with Holder’s investigation its “focus is too narrow.”

“There is abundant evidence that torture was authorized at the highest levels of the Bush administration, and the Justice Department’s investigation should be broad enough to encompass Bush administration lawyers and senior officials – including the CIA officials – who authorized torture,” he said.

But that is highly unlikely and in that sense, the probe is reminiscent of the investigations into Abu Ghraib, in which low-level MPs were court-martialed and imprisoned for acts that supposedly had not been sanctioned by their superiors, who included, among others, former Secretary of Defense Donald Rumsfeld.

Matthew Miller, a Justice Department spokesman, made it clear Friday that the investigation authorized by Holder is simply a “preliminary review” and “that review will be narrowly-focused.”

“The Attorney General’s decision to order a preliminary review into this matter was made in line with his duty to examine the facts and to follow the law,” Miller said. “As he has made clear, the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”

Last month, Holder instructed Assistant U.S. Attorney John Durham to undertake a “preliminary” inquiry into whether some interrogators exceeded the parameters that the Bush administration placed on the treatment of “war on terror” detainees.

With Cheney’s strong support, interrogators were permitted to engage in a variety of torture techniques, including the drowning sensation of waterboarding, but some interrogators allegedly engaged in practices outside those guidelines.

Durham is also investigating crimes related to the destruction of CIA torture tapes, a dozen of which show two high-value detainees being subjected to “enhanced interrogation techniques.”

Holder’s decision came on the day the CIA released a declassified version of an inspector general’s report on the agency’s interrogation and detention program.

The May 2004 report prepared by CIA Inspector General John Helgerson said interrogators staged mock executions, revved a power drill and brandished a revolver during interrogations and threatened to kill the family of self-professed 9/11 mastermind Khalid Sheikh Mohammed and rape the wife of another high-value detainee, Abd Al-Rahim Al Nashiri.

Threatening prisoners in custody of the U.S. government with imminent death is a violation of the Convention Against Torture.

Helgerson also investigated the deaths of detainees in U.S. custody, but the details of those cases were redacted.

The ex-CIA directors claim, like other critics of the probe, that career federal prosecutors in the Eastern District of Virginia had already spent considerable time probing cases Helgerson referred to the Justice Department and “determined that one prosecution (of a CIA contractor) was warranted. A conviction was later obtained. They determined that prosecutions were not warranted in the other cases.”

“The CIA, at its own initiative, forwarded fewer than 20 instances where Agency officers appeared to have acted beyond their existing legal authorities…,” the CIA directors’ letter says. “In a number of these cases the CIA subsequently took administrative disciplinary steps against the individuals involved.”

Jane Mayer, in her book The Dark Side, said there was a mountain of evidence to support prosecutions and a belief by some “insiders that [Helgerson's investigation] would end with criminal charges for abusive interrogations.”

But top Justice Department officials, including former head of the criminal division Michael Chertoff, his deputy Alice Fisher and Deputy Attorney General Paul McNulty, allowed the cases to languish and may have even scuttled the probes to protect the Bush White House.

McNulty resigned in disgrace two years ago and is under scrutiny by a special prosecutor investigating the firings of nine US attorneys. McNulty faces obstruction of justice and perjury charges related to his February 2007 testimony to Congress about the ordeal.

The former CIA directors said the Holder’s “decision to re-open the criminal investigation creates an atmosphere of continuous jeopardy for those whose cases the Department of Justice had previously declined to prosecute.”

“Moreover, there is no reason to expect that the re-opened criminal investigation will remain narrowly focused,” they wrote.

But according to a report in Saturday’s Washington Post, that’s exactly what appears to be happening.

“The Justice Department’s review of detainee abuse by the CIA will focus on a very small number of cases, including at least one in which an Afghan prisoner died at a secret facility, according to two sources briefed on the matter,” the Post reported.

“Although earlier reports indicated that Durham would look into 10 cases, a source said recently the number is much smaller,” according to the Post. In all, 24 alleged abuse cases were earlier referred to federal prosecutors by the CIA inspector general, of which 22 were declined, according to a letter in February 2008 from a Justice Department legislative liaison.”

The Post, citing unnamed sources, also said that a report by the Justice Department’s Office of Professional Responsibility on legal advice related to interrogations attorneys in the agency’s Office of Legal Counsel gave to the Bush administration “does not point to problems with attorneys in the Eastern District of Virginia… but it does explore differences of opinion within the working group that examined the detainee allegations over how to proceed on the few cases that were ‘close calls.’

“In a small number of instances, career lawyers disagreed about whether the evidence was sufficient to seek indictment and ultimately win in court. Some of those issues were assessed — as is normally the case — by political appointees, including Paul J. McNulty, the U.S. Attorney in the Eastern District of Virginia who was nominated to serve as deputy attorney general in October 2005. There are no allegations that cases were rejected for improper political reasons.”

In an interview two weeks ago with the German magazine Der Spiegel, Helgerson said Holder “had no choice” but to authorize an investigation.

But, “at the end of the day, I think he will find it is not feasible to prosecute anyone who participated in the approved program,” Helgerson said. “I personally would not prosecute. There are a number of complex and mitigating circumstances in all these cases, including the passage of time, the nature of the evidence, and — importantly — the clear absence of any criminal intent.”