This picture of Abu Zubaydah was included in his classified Guantanamo Detainee Assessment Brief released last month by WikiLeaks.

This exclusive report was originally published by Truthout on March 30, 2010. It was written by investigative reporter Jason Leopold.

The Justice Department has quietly recanted nearly every major claim the Bush administration made about Abu Zubaydah the alleged al-Qaeda leader who was the first suspected terrorist subjected to the torture of waterboarding and other White House-approved “enhanced interrogation techniques.”

In a federal court filing, Justice backed away from the Bush administration’s statements that Zubaydah was the No. 2 or No. 3 official in al-Qaeda who had helped plan the 9/11 attacks, as well as even earlier claims from the Clinton administration that he was directly involved in planning the 1998 embassy bombings in East Africa.

The US government’s retreat underscores yet another problem with President George W. Bush’s use of torture. Besides its illegality and immorality, torture can be applied to suspected terrorists who have been falsely identified and who thus don’t possess the expected information, which can lead frustrated interrogators to escalate the torture until the subject provides something, whether true or not.

Such false expectations appear to have been a factor in the case of Zubaydah, who was captured in Pakistan on March 28, 2002. He appeared to respond cooperatively to FBI interrogators using “rapport-building” techniques, but his failure to supply details that the CIA had anticipated led the agency to obtain high-level permission to subject him to the near-drowning experience of waterboarding and other torture techniques.

After those techniques were cleared by the Justice Department’s Office of Legal Counsel in mid-summer 2002 – and were sanctioned by Vice President Dick Cheney and other senior Bush administration officials – CIA interrogators applied the methods to Zubaydah In their frustration, they ultimately waterboarded him 83 times before concluding that many of his claims of ignorance were truthful.

In recent months, former Bush speechwriter Marc Thiessen has been on a public relations campaign promoting his book, “Courting Disaster,” in which he defended the torture of Zubaydah, claiming that he reviewed classified intelligence that revealed Zubaydah’s torture produced actionable intelligence that thwarted imminent plots against the United States.

The Justice Department has now backed away from the Bush administration’s more extreme claims in a 109-page court document filed in US District Court in Washington last September in response to 213 discovery requests from Zubaydah’s attorneys in his habeas corpus case, which demands evidence to support his continued detention at Guantanamo Bay, Cuba.

In the filing, the Justice Department asked the judge presiding over the case to deny virtually every discovery request sought by Zubaydah’s attorneys, explaining, in some instances, that the US government no longer relied upon the explosive allegations that President Bush and other top officials made about Zubaydah after he was captured and tortured in 2002.

For instance, the document refutes Bush’s direct statements about Zubaydah, including a claim that he was one of al-Qaeda’s “top operatives plotting and planning death and destruction on the United States.”

For the first time, the government officially admitted that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,” and was neither a “member” of al-Qaeda nor “formally” identified with the terrorist organization.

Retreat’s Impact

The government’s retreat also could add to the mounting criticism of US Appeals Court Judge Jay Bybee, who in August 2002 as head of the Office of Legal Counsel signed memos authorizing the torture techniques that were applied to Zubaydah and other “high-value” detainees.

At the time, Bybee asserted, based on information he received from the CIA, that Zubaydah “is one of the highest ranking members of the al-Qaeda terrorist organization,” “has been involved in every major terrorist  operation  carried out by  al-Qaeda,” and was “one of the planners of  the September 11 attacks.” Bybee approved the harsh interrogation as necessary to thwart pending attacks on US interests, which the CIA claimed Zubaydah knew about.

While backing away from the extravagant claims of the Bush era, the Obama administration says Zubaydah should still be detained based on his “actions” as an “affiliate” of al-Qaeda.

The Justice Department filing alleged that Zubaydah “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces” after the US invaded Afghanistan in October 2001.

The government acknowledged that its case against Zubaydah is based entirely on the first six volumes of his diaries that he wrote beginning in 1992 and an undated “propaganda video [Zubaydah] recorded before his capture in which [he allegedly] appears on camera expressing solidarity with Usama Bin Laden and al-Qaida.”

The government’s new charges, according to the court filing, include allegations that “[Zubaydah] was present in [the Afghan city of] Kandahar in November 2001, and a number of prominent terrorist figures converged on Kandahar around the same time,” including self-professed 9/11 mastermind Khalid Sheikh Mohammed. But the government does not “specify whether any of these figures met during that that time period.”

Zubaydah’s attorneys say the new allegations are baseless and have asked the government for “evidence that would undermine an ‘insinuation that [Zubaydah's] presence in Kandahar … was related to the presence of known terrorists in the city’ is vague and insufficiently specific and is not supported by any allegations about whether [Zubaydah] in fact was present in Kandahar or for what purpose.”

Zubaydah’s attorneys claim that “the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included ‘women, children, and/or other non-combatants’” and that the government has evidence to support those assertions. The lawyers also questioned the government’s history of falsehoods about their client.

“The Government’s accounts frequently have been at variance with the actual facts, and the government has generally been loath to provide the facts until forced to do so,” said Zubaydah’s attorney, Brent Mickum, in an interview.

“When the Government was forced to present the facts in the form of discovery in Zubaydah’s case, it realized that the game was over and there was no way it could support the Bush administration’s baseless allegations. So it changed the charges.”

No Formal Allegiance

In seeking to block Zubaydah’s discovery motions, the Justice Department also said the government was no longer contending that Zubaydah “was a ‘member’ of al-Qaida in the sense of having sworn bavat (allegiance) or having otherwise satisfied any formal criteria that either [Zubaydah] or al-Qaida may have considered necessary for  inclusion in al-Qaeda.

“Nor is the government detaining [Zubaydah] based on any allegation that [Zubaydah] views himself as part of al-Qaida as a matter of subjective personal conscience, ideology or worldview. Rather, [the government's] detention of [Zubaydah] is based on conduct and actions that establish [Zubaydah] was ‘part of’ hostile forces and ‘substantially supported’ those forces.”

That retreat contradicts initial claims made by senior Bush administration officials, including Defense Secretary Donald Rumsfeld, who described Zubaydah as a “close associate of [Osama bin Laden], and if not the number two, very close to the number two person in the organization. I think that’s well established.”

Even after Zubaydah’s interrogators apparently apologized to him for that mistaken impression – at his Combatant Status Review Tribunal hearing, Zubaydah said “they told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter” – the Bush administration continued to hype his role.

John Bellinger, legal adviser to Secretary of  State Condoleezza Rice, said during a June 2007 briefing about Guantanamo Bay detainees that Zubaydah, who was transferred to Guantanamo in 2006, helped  plan the 9/11 attacks and was “extremely dangerous.”

But the Justice Department now says “the Government has not contended in this [habeas] proceeding that [Zubaydah] had any direct role in or advance knowledge of the terrorist attacks of September 11, 2001, so [to] the extent that this request seeks information ‘tending to show … that [Zubaydah] did not know of the planned attacks of 9/11′, the request seeks evidence about contentions the Government has not made.”

The Justice Department also asked US District Court Judge Richard Roberts, who is presiding over the  habeas case, to deny defense requests for evidence that would “undermine”  government claims that Zubaydah worked on bin Laden’s “military and security plan to confront  an American counterattack” in Khost,  Afghanistan, after 9/11.

“The Government does not rely on any contention that [Zubaydah] did this work as an ‘al-Qaida’ deputy or because he was subject to al-Qaida command,” according to the court document.

Blocking a KSM Interview

And the Justice Department opposed Zubaydah’s lawyers’ request to question Khalid Sheikh Mohammed about whether he met Zubaydah, when the two were allegedly in Kandahar at the same time in November 2001.

“It is difficult to imagine how any answer from Khalid Sheikh Mohammed would substantially help [Zubadyah],” the government filing said. “Even if Khalid Sheikh Mohammed were to say he did not meet with Petitioner while they were in Kandahar, the fact that [Zubaydah's] presence in Kandahar coincided with the presence of major terrorist figures in Kandahar would still weigh in favor of [his continued] detention.”

According to lawyer Mickum, the government’s “entirely new position” about Zubaydah was revealed last year to in a 44-page Factual Return that included more than 2,000 pages of exhibits.

“I’m not surprised at all that the Government has dropped the old charges against our client and is alleging new charges against him,” Mickum said in an interview. “That is their tried-and-true modus operandi. That’s exactly what they did with my client Bisher al Rawi. He was initially charged with associating with a known al-Qaeda figure in London.

“Unfortunately, Bisher was associating with him at the express request of Britain’s MI5 [intelligence service]. After we established that he [Bisher] worked for MI5, the US simply changed the charges against him, alleging that he had terrorist training in Bosnia and Afghanistan.

“Once again, we were able to show those charges were utterly bogus when we proved that Bisher had never left England from 1998 until his fateful business trip to Africa, where he was arrested by the CIA, rendered to the ‘Dark Prison’ in Afghanistan and tortured, tortured at Bagram Air Force base and tortured in Guantanamo.

“What all these cases have in common is torture, and [Zubaydah's] case has that in spades. Given, the government’s history, it is not likely they would simply let him go and apologize. No, when their case falls apart, they re-jigger the evidence, and come up with new charges and [say] ‘we will defend the new charges with the same zeal we defended the earlier bogus charges.’”

Zubaydah’s attorneys argued in his initial petition for habeas corpus filed in February 2008 that he was not a member of al-Qaeda, that he had no knowledge of any terrorist operations, and that the military camp he was alleged to be affiliated with, Khaldan, was closed by the Afghan Taliban after refusing to let it go under the formal control of bin Laden and al-Qaeda.

“We have never deviated from that position, and now the government admits that we were correct all along,” Mickum said.

Indeed, the Justice Department’s response agrees that Khaldan was “organizationally and operationally independent” of al-Qaeda’s camps. The filing also backed off other claims made by Bush administration officials that Zubaydah knew the identities of specific individuals who trained at Khaldan and later went on to al-Qaeda-operated camps and allegedly took part in terrorist activities.

“The Government has not contended in this proceeding that Petitioner selected or knew the identities of specific persons who were selected to leave Khaldan for training at al-Qaida camps,” the filing states.

Undermining 9/11 Report

The US government’s new position also undercuts the 9/11 Commission’s report as it relates to Zubaydah. The report called him the leader of Khaldan.

The 9/11 report added that Zubaydah was a “major figure” in the “Millennium plot,” claiming he was a mastermind behind a plan to bomb a hotel in Jordan and Los Angeles International Airport.

The 9/11 report cited several  intelligence memoranda from then-counterterrorism czar Richard Clarke that Zubaydah was planning “a series of major terrorist attacks” on Israeli and possibly US targets and was working closely with bin Laden. Clarke declined numerous requests for comment.

Terrorist suspicions about Zubaydah predated the 9/11 attacks. Indeed, in the infamous Aug. 6, 2001, Presidential Daily Brief titled, “Bin Laden Determined to Strike in US,” he was identified as bin Laden’s “lieutenant” and alleged to have “helped facilitate” the plot to detonate a bomb at LAX.

FBI officials obtained that information from Ahmed Ressam, who was convicted in the LAX plot in April 2001. In exchange for a lighter sentence, Ressam cooperated with the government and identified alleged terrorists, including Zubaydah, who Ressam said was a key figure in al-Qaeda, ran Khaldan and had close connections to bin Laden. Ressam also said Zubdaydah told him in 1998 that, independent of bin Laden, he was preparing his own attack against the United States. Ressam later recanted his statements.

When asked about what the 9/11 Commission was told regarding Zubaydah, Mickum suggested that the panel was lied to by the CIA.

“After torturing our client, the CIA knew he was never a member of al-Qaeda and that he had no knowledge of any al-Qaeda terrorist activities,” Mickum said. “And this fact was confirmed after other members of al-Qaeda like [Khalid Sheikh Mohammed] and the [alleged mastermind of the USS Cole bombing] al-Nashiri were tortured.”

In an interview last year, Jack Cloonan, a former FBI special agent assigned to the agency’s elite bin Laden unit, said the CIA and the Bush administration were flat wrong in designating Zubaydah as a top official in al-Qaeda.

“To cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse … I think was a mistake. … Based on his age and ethnicity, [he] would [n]ever be brought into the inner circle of al-Qaeda,” Cloonan said.

There was also the question of Zubaydah’s personality. “My partner had a chance to look at a lot of Abu Zubaydah’s diaries [which forms the basis of the government's case], poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can’t be trusted or be given huge amounts of responsibility.”

Zubaydah began keeping a diary in 1992, after he suffered a severe head injury while fighting communist forces in Afghanistan. The injury left “significantly impaired both his long- and short-term memory,” states a Jan. 14, 2009, motion his attorneys filed related to his diaries.

“Long after his 1992 injury, once [Zubaydah] had recovered the ability to speak and write, he began to keep a diary. It is his memory. Without it, he is lost.”

The diary now appears to be the chief element of the US government’s remaining case against him.

Former United States Secretary of Defense Donald Rumsfeld speaking at CPAC 2011 in Washington, DC. Rumsfeld has recently denied knowledge of any waterboarding by US military personnel taking place at Guantanamo Bay. Photo: Gage Skidmore/Flickr

This report was written by Jeffrey Kaye and originally published on Truthout.

In the controversy over whether torture, especially waterboarding, was used to gather information leading to the capture of Osama bin Laden, former Secretary of Defense Donald Rumsfeld told Fox News’ Sean Hannity recently that “no one was waterboarded at Guantanamo by the US military. In fact, no one was waterboarded at Guantanamo, period.”

In his memoir, “Known and Unknown,” Rumsfeld maintained, “To my knowledge, no US military personnel involved in interrogations waterboarded any detainees,not at  Guantanamo or anywhere else in the world.” But as we shall see, Rumsfeld was either lying outright, or artfully twisting the truth.

Others have insisted as well that the military never waterboarded anyone. Law and national security writer Benjamin Wittes wrote in The New Republic last year that “the military, unlike the CIA, never waterboarded anybody.” Harper’s columnist Scott Horton also noted last year, “There is no documentation yet of waterboarding at Gitmo, but the case book is far from closed on that score, too.”

Yet, though not widely reported and scattered among various articles and reports on detainee treatment by the military, including first-person accounts, there are a number of stories of forced water choking or drowning, both at Guantanamo and other US military sites.

In little-known testimony in May 2008 before Congress, former Guantanamo detainee Murat Kurnaz testified he endured a form of simulated drowning. In his testimony before a subcommittee of the House Committee on Foreign Affairs, Kurnaz said that under US military captivity at Khadahar, Afghanistan, prior to his transfer to Guantanamo, his head was “dunked under water to simulate drowning.”

Asked by Republican Congressman Rohrabacher if he hadn’t then been waterboarded, Kurnaz responded, “No, it’s not waterboarding. It’s called ‘water treatment.’ There was a bucket of water.”

ROHRABACHER: Was a cloth put over your face and you were put on a board?

KURNAZ: There was a bucket of water. And they stick my head in it and at the same time, punch me into my stomach.

Rohrabacher reportedly commented, “The CIA is claiming that only three people have been waterboarded. And this may be a loophole that they’re suggesting that’s not ‘waterboarding.’”

According to a report on Kurnaz’s testimony at the time by The Christian Science Monitor, Pentagon spokesman Cmdr. Jeffrey Gordon replied to the torture charges: “The abuses Mr. Kurnaz alleges are not only unsubstantiated and implausible, they are simply outlandish.”

Whether implausible or not, waterboarding was one of a number of “counter-resistance techniques” requested for use at Guantanamo by Maj. Gen. Mike Dunleavy, commander of Task Force 170. In an October 2002 memo from Dunleavy’s intelligence chief requesting use of a number of techniques, including sensory deprivation, isolation, stress positions, forced nudity and death threats, there was also a proposal for “Use of a wet towel and dripping water to induce the misperception of suffocation.”

In a follow-up memo approving most, but not all of the requested techniques, Department of Defense (DoD) general counsel William J. Haynes II said of the “wet towel” and other so-called “aggressive” “Category III” techniques, “While all Category III techniques may be legally available, we believe that, as a matter of policy, a blanket approval of Category III techniques is not warranted at this time.” (Emphasis added.)

Water Torture at Guantanamo

Evidence regarding waterboarding or other forms of water torture by suffocation or choking at Guantanamo has been reported, but this article is the first collection of the various reports in one place.

Last April, a report by two doctors who were allowed to examine “medical records and relevant case files … of nine individuals for evidence of torture and ill treatment,” found at least one case of “near asphyxiation from water (i.e., hose forced into the detainee’s mouth)” and another case where a detainee’s head was forced into a toilet.

The report, by doctors Vincent Iacopino and Stephen N. Xenakis, was published at PLoS Medicine. Dr. Xenakis is also a retired brigadier general in the Army, who has worked as a medical consultant on a number of Guantanamo legal cases.

Additionally, accusations of military waterboarding turned up in a Department of Justice (DOJ) Inspector General (IG) report on “FBI Involvement in and Observations of Detainee Interrogations” that was released at almost the same time as Kurnaz’s testimony (May 2008). The IG noted that the chief of the FBI’s Military Liaison and Detainee Unit at Guantanamo told DoD Assistant Attorney General Dave Nahmias, “one of the planned or actual techniques used on [purported 9/11 would-be hijacker, Mohammed] Al Qahtani was simulated drowning.”

In fact, the military admits the use of pouring water over al Qahtani’s head, as is discussed below.

At another point in the report, the IG describes one FBI agent who “once heard a discussion at GTMO when someone mentioned using water as an interrogation tool and someone else in the group said, ‘Yeah, I’ve seen that.’” According to the IG report, no FBI agent actually reported seeing waterboarding or water torture him or herself.

Whether or not waterboarding was observed by FBI agents at Guantanamo, we know from the minutes of a “Counter-resistance Strategy meeting” at Guantanamo on October 22, 2002, that waterboarding (called the “wet towel” technique) was discussed (see Tab 7 at link). The meeting included legal officials from the CIA, DIA, the Guantanamo intelligence chief, as well as members of the Guantanamo Behavioral Science Consulting Team (BSCT).

At one point, Lt. Col. Diane Beaver, the Staff Judge Advocate at Guantanamo asked whether SERE (Survival, Evasion, Resistance and Escape) employed “the ‘wet towel’ technique.” Jonathan Fredman, then chief counsel to the CIA’s counter-terrorism center, replied:

“If a well-trained individual is used to perform [sic] this technique it can feel like you’re drowning. The lymphatic system will react as if you’re suffocating, but your body will not cease to function. It is very effective to identify phobias and use them (ie, insects, snakes, claustrophobia). The level of resistance is directly related to person’s experience.”

At this point, a BSCT psychiatrist noted, “Whether or not significant stress occurs lies in the eye of the beholder. The burden of proof is the big issue.” Fredman replied, “These techniques need involvement from interrogators, psych, medical, legal, etc.”

Fredman continued “The CIA makes the call internally on most of the types of techniques found in the BSCT paper and this discussion.” In a reference to the approvals for waterboarding and other techniques given the CIA by Office of Legal Counsel memos a few months before, he added, “Significantly harsh techniques are approved through the DOJ.” There was no indication in the minutes from the meeting that waterboarding was not allowed for Defense Department use.

Waterboarding of Mohammed al Qahtani

Mohammed al Qahtani was a Saudi Arabian citizen brought to Guantanamo in early 2002. Ostensibly believed to be a part of the 9/11 plot, when interrogators became frustrated at their inability to get information out of him, or force his compliance, they turned to methods of interrogation that the Guantanamo Convening Authority Susan Crawford would later herself conclude amounted to torture.

By November 2002, al Qahtani had become the “first subject of a Special Interrogation Plan,” which relied heavily on the military’s SERE torture school techniques, including isolation, stress positions, sexual humiliation and apparently, a form of waterboarding. SERE was created to provide US military personnel with training to resist torture.

Even years before Crawford’s admission, DoD’s Schmidt-Furlow report, looking at early allegations of detainee abuse, concluded that “the creative, aggressive and persistent interrogation of the subject of the first Special Interrogation Plan [al Qahtani] resulted in the cumulative effect being degrading and abusive treatment.” No one has ever been charged for such crimes committed against this or any other Guantanamo detainee.

The Schmidt-Furlow report details the use of water torture on al Qahtani, an aspect of his torture that has been little reported:

On seventeen occasions, between 13 Dec 02 and 14 Jan 03, interrogators, during interrogations, poured water over the subject of the first Special Interrogation Plan head….

There is evidence that the subject of the first Special Interrogation Plan regularly had water poured on his head. The interrogation logs indicate that this was done as a control measure only.

Time Magazine published al Qahtani’s interrogation logs  in 2005. The use of water to drench al Qahtani’s head does not appear to be a “control measure” when it is discussed in the logs themselves.

On December 23, 2002, a log selection describes how interrogators hung pictures of swimsuit models around al Qahtani’s neck. Then the lead interrogator “pulled pictures of swimsuit models off detainee and told him the test of his ability to answer questions would begin. Detainee refused to answer and finally stated that he would after [the] lead [interrogator] poured water over detainees [sic] head and was told he would be subjected to this treatment day after day. Detainee was told to think about his decision to answer questions.”

The day before, when al Qahtani had refused to look at “fitness photos,” saying it was against his religion, interrogators had “poured a 24 oz bottle of water over detainee’s head.” The log notes dryly, “Detainee then began to look at photos.”

In their investigation of detainee abuse, the Senate Armed Services Committee (SASC) noted in a 2008 report that the Navy limited waterboard demonstrations to two pints (32 oz.) of water. A January 13, 2003, memo, described in the SASC report, underreported how much water was poured over Qahtani, saying that “up to eight ounces of water” was poured over Qahtani’s head as a “method of asserting control” when Khatani exhibited ”undesired behavior.”

The SASC report also said that the interrogation plan for another Guantanamo detainee, Mohamadou Walid Slahi, included the practice of pouring water over Slahi’s head to “enforce control” and “keep [him] awake.”

Three More Guantanamo Detainees Report Suffocation by Drowning

Besides Kurnaz and al Qahtani, at least three other detainees have reported being tortured at Guantanamo by application of water meant to cause suffocation, choking or the sensation of drowning.

A 2009 article by Jeremy Scahill outlined the torture and abuse endured by former Guantanamo detainee and British resident Omar Deghayes. Scahill mentions two incidents where the Immediate Reaction Force (IRF, sometimes called the Emergency Reaction Force, or ERF) used forms of water torture on Deghayes. In one case, the detainee was shackled, his head put into a toilet. The IRF team “pressed his face into the water. They repeatedly flushed it.”

The IRF or ERF team also came into Deghayes cell on another occasion and conducted a simulated or partial drowning.

The ERF team came into the cell with a water hose under very high pressure. [Deghayes] was totally shackled and they would hold his head fixed still. They would force water up his nose until he was suffocating and would scream for them to stop. This was done with medical staff present and they would join in.

According to Scahill, the IRF team conducted this form of waterboarding three times on Deghayes. Note that the presence of medical staff is consistent with the use of medical personnel under CIA descriptions of how they conducted waterboarding.

Another example of water torture involving Guantanamo guards appears in a document related to the case of Djamel Ameziane, an Algerian Berber who has been held at Guantanamo for over eight years, despite the fact he never received military or terrorist training, nor fought against the US. According to 2008 legal filing for Ameziane by the Center for Constitutional Rights (CCR):

In another violent incident, guards entered his cell and forced him to the floor, kneeing him in the back and ribs and slamming his head against the floor, turning it left and right. The bashing dislocated Mr. Ameziane’s jaw, from which he still suffers. In the same episode, guards sprayed cayenne pepper all over his body and then hosed him down with water to accentuate the effect of the pepper spray and make his skin burn. They then held his head back and placed a water hose between his nose and mouth, running it for several minutes over his face and suffocating him, an operation they repeated several times. Mr. Ameziane writes, “I had the impression that my head was sinking in water. I still have psychological injuries, up to this day. Simply thinking of it gives me the chills.” [Emphasis added.]

In March 2008, six Guantanamo detainees filed suit against Bosnia and Herzegovina in the European Court of Human Rights in Strasbourg for failure “for many years to take any steps to negotiate and secure the men’s release from Guantanamo.” One of the men, Mustafa Ait Idr, who had been rendered to Guantanamo and “taken from his pregnant wife in violation of a Bosnian court order to free him,” also reported use of water torture in a manner remarkably similar to that of Ameziane.

A CCR report on “Torture, Cruel, Inhuman and Degrading Treatment of Prisoners at Guantanamo Bay, Cuba” said that on one occasion prison guards demanded to search Idr’s cell. Idr cooperated, but they came in, sprayed him in the face with a chemical irritant and put him into restraints.

According to the CCR report, “Guards then slammed him head first into the cell floor, lowered him, face-first into the toilet and flushed the toilet – submerging his head. He was then carried outside and thrown onto the crushed stones that surround the cells. While he was down on the ground, his assailants stuffed a hose in his mouth and forced water down his throat.” As a result, Idr’s face was paralyzed for several months.

Other threats to use waterboarding on DoD prisoners, or to rendition detainees for water torture, are also on record. According to journalist Robert Windrem in a 2009 story at The Daily Beast, then Vice President Dick Cheney requested the waterboarding of Muhammed Khudayr al-Dulaymi, the head of the M-14 section of Mukhabarat. According to the article, the official in charge of interrogations of Iraqi officials at the time, Charles Duelfer, declined the request.

According to the SASC detainee report, the lead agency for SERE, Joint Forces Personnel Agency, constructed a CONOP (Concept of Operations) plan for use at a Special Mission Unit Task Force interrogation center in Iraq. The CONOP recommended use of the “water board.” Military legal figures reportedly objected to that and other techniques, but it is not known whether Special Forces in Iraq used waterboarding or other water torture techniques and the SASC report does not enlighten us on that point.

In another case, former Italian resident and Guantanamo detainee, Tunisian-born Saleh Sassi, reported that in late 2002, Tunisian agents came to Guantanamo and interrogated him. They “left no doubt about what awaited ex-Guantanamo inmates back in Tunisia: ‘water torture in the barrel’ and other horrors.” Sassi was released and sent to Albania in 2010.

Finally, the DOJ IG report on FBI interrogations referenced earlier describes how an Abu Ghraib prisoner, Saleh Muklef Saleh, was restrained and had cold water poured over him on more than one occasion. One time, according to Saleh’s own testimony, “They gave me one or two bottles of water and they asked me to drink it while I was hungry and they forced me to drink it and I did and I felt vomiting, then they ordered me to drink again and they were looking at me and laughing” (pp. 279-280).

Back in 2008, during the Congressional meeting where Murat Kurnaz testified to the use of water torture upon him, Democratic Congresswoman Sheila Jackson-Lee commented, “It seems that we have a new definition … If you were wedded to the language of waterboarding, now we have new language called ‘water treatment,’ which may bear on being torture as well.”

To date, there has been no investigation that specifically has looked at the use of types of water torture, including waterboarding or water treatment, on detainees. The military’s current Army Field Manual on interrogation forbids the use of “waterboarding.” It is the only “prohibited action” term that is described with quotation marks around it.

A Human Rights Watch report issued on July 12 called for President Barack Obama “to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials.”

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor to Truthout, blogs about civil liberties and issues revolving around the US government’s torture program at The Dissenter. He can be reached at sfpsych at gmail dot com. Follow Jeff on Twitter: @Jeff_Kaye

In effect, Judge Eloy Velasco sent the case back to the U.S. at the request of the Department of Justice, who argued in their March 1, 2011 letter to the judge that the U.S. is plenty interested in investigating and prosecuting torture and other war crimes. Besides the cases of CIA contractors David Passaro and Don Ayala (Marcy Wheeler discusses the Passaro case here), assorted Defense Department prosecutions of “bad apple” abusers, and the lingering Durham investigation, the U.S. representation cannot dredge up any significant criminal investigations — except one (if it is one).

The letter rogatory to the Spanish court refers to “pending federal investigations by the United States Attorneys’ Office for the Eastern District of Virginia” on “various allegations of abuse of detainees.” (p. 3-4 of letter) In addition the letter refers to “pending status and legal restrictions on the disclosure of investigative information, including rules of grand jury secrecy”. Since there has been no previous reports on current grand jury proceedings in the Eastern District on detainee abuse that I know of, is this a reference to the former cases since sent from the Eastern District by Attorney General Holder in 2009 for review by special prosecutor John Durham? Or is this something new? Have some of the cases under preliminary review by Mr. Durham now reached full investigation status?

DoJ Keeps Mum on Virginia “Pending” Investigation

In response to such questions, Dean Boyd, spokesman for the National Security Division at the Department of Justice replied to me today, “There is nothing further I can provide to you on this matter beyond what is in the document.”

Since the U.S. representation to the Spanish court was meant to convince the judge that the U.S. was serious about seeking investigations and prosecutions regarding torture, it is important to know whether a new stage in the otherwise dilatory investigations by the Obama administration, who famously has announced it would rather look forward and not backwards when it comes to investigating torture, has been hereby announced, or whether this was a con job by DoJ, describing the Eastern District grand jury as somehow still in play, when in reality, its actions on detainee abuse are non-existent, waiting for some determination of the review by Durham and his office.

Durham’s review has also been going on for over a year and a half now. But it was last June when, according to an article at Main Justice, Attorney General Holder said in remarks at the University of the District of Columbia Law School, that Durham was near the end of his preliminary review, and ”close to the end of the time that he needs and will be making some recommendations to me.” Did those recommendations include a referral back to the Eastern District for investigation and prosecution of those cases? According to the article, “several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next.”

In a rebuttal letter to the U.S. response, the Center for Constitutional Rights (CCR), which has been championing the Spanish prosecution, appears to believe the entire episode as written up in the recent March 1 letter is a smokescreen for a whole lot of nothing. CCR wrote, “The U.S. Submission tries to hide behind the secrecy aspects of the grand jury proceedings to suggest that this investigation is a robust investigation into detainee abuse. It is notable, however, that the United States government has not spoken of any investigation in Virginia when discussing US investigations into US torture…” (PDF).

It must be galling to those looking to the Spanish court, and the hard workers at CCR especially, to see Judge Velasco so quickly take U.S. guarantees of sincerity as good coin. The U.S. had told the court, “The United States will continue to address allegations of abuse by its personnel, at home and abroad, and therefore believes it is appropriate for the Spanish courts to refer complaints related to such matters to the United States for appropriate review and action.”

CCR responded, noting the Obama administration policy of impunity for torture among mid-level and high-ranking government figures:

Through its actions and inactions, the U.S. clearly has demonstrated its unwillingness to exercise its jurisdiction to investigate and prosecute the named defendants for serious violations of international law. To refer this investigation from Spain to the United States would be to knowingly transfer this case to be closed.

Those following the torture scandal will find high irony in the U.S. claims that the DoJ Office of Public Responsiblity (OPR) and Senate Armed Services Committee (SASC) investigations, into DoJ Office of Legal Counsel malfeasance on the torture memos and on the origins and spread of the DoD torture program, respectively, are somehow indicative of U.S. good faith on investigations. The OPR report found government attorneys John Yoo and Jay Bybee to be guilty of “professional misconduct,” only to have DoJ Associate Deputy Attorney General David Margolis downgrade the OPR decision. The SASC investigation found the torture at Abu Ghraib, Guantanamo and elsewhere to be the responsibility not of “bad apples” in the military, but of high officials who promoted a program of torture and detention abuse.

It seems unlikely that the Durham investigation is actually going to bear any fruit, or that a grand jury investigation on detainee abuse is actually underway in Virginia. Sooner or later, we will know the truth. But whatever it is, the actions and policy of the Obama administration won’t fundamentally change, as high officials, such as those identified in the Spanish case — David Addington, Jay S. Bybee, Douglas Feith, Alberto R. Gonzales, William J. Haynes, and John Yoo — are not in any danger of prosecution. The U.S. has made that clear numerous times, and most lately in the response to the Spanish judge.

Update, Thursday morning, 7:25 PDT,: Center for Constitutional Rights released a statement today regarding Velasco’s dismissal of “this politically charged case,” noting that the U.S. made it clear in it’s statement that “the Department of Justice has concluded that it is not appropriate to bring criminal cases with respect to any other executive branch officials, including those named in the complaint, who acted in reliance on [Office of Legal Counsel] memoranda during the course of their involvement with the policies and procedures for detention and interrogation.”

“This decision is a cowardly political act by a judge afraid to pursue justice under his country’s own laws. He is hiding behind the fig leaf of the U.S.’s scant seven-page response, but the submission made clear the U.S. has no intention of investigating these crimes or holding higher-level officials accountable for torture. As we saw from the WikiLeaks cables, the U.S. has been pressuring Spain to drop the case and interfering with the independence of judges. A second U.S. torture case remains open in Spain after a higher court ruled it should continue on February 25. Judge Velasco asked for opposing views but then issued his decision without even looking at our detailed submission refuting the U.S. claims. We will fight this decision and continue to demand accountability for torture.”

This diagram was included in a paper written by Dr. Bruce Jessen's and shows his view of the conflicting psychological pressures bearing down on a prisoner who is held captive by an enemy.

This investigative report was written by Jason Leopold and Jeffrey Kaye and originally published at Truthout.

Dr. Bruce Jessen’s handwritten notes describe some of the torture techniques that were used to “exploit” ”war on terror” detainees in custody of the CIA and Department of Defense.

Bush administration officials have long asserted that the torture techniques used on “war on terror” detainees were utilized as a last resort in an effort to gain actionable intelligence to thwart pending terrorist attacks against the United States and its interests abroad.

But the handwritten notes obtained exclusively by Truthout drafted two decades ago by Dr. John Bruce Jessen, the psychologist who was under contract to the CIA and credited as being one of the architects of the government’s top-secret torture program, tell a dramatically different story about the reasons detainees were brutalized and it was not just about obtaining intelligence. Rather, as Jessen’s notes explain, torture was used to “exploit” detainees, that is, to break them down physically and mentally, in order to get them to “collaborate” with government authorities. Jessen’s notes emphasize how a “detainer” uses the stresses of detention to produce the appearance of compliance in a prisoner.

Click to view larger.

Indeed, a report released in 2009 by the Senate Armed Services Committee about the treatment of detainees in US custody said Jessen was the author of a “Draft Exploitation Plan” presented to the Pentagon in April 2002 that was implemetned at Guantanamo and at prison facilities in Iraq and Afghanistan. But to what degree is unknown because the document remains classified. Jessen also co-authored a memo in February 2002 on “Prisoner Handling Recommendations” at Guantanamo, which is also classified.

Moreover, the Armed Services Committee’s report noted that torture techniques approved by the Bush administration were based on survival training exercises US military personnel were taught by individuals like Jessen if they were captured by an enemy regime and subjected to “illegal exploitation” in violation of the Geneva Conventions.

Jessen’s notes, prepared for an Air Force survival training course that he later “reverse engineered” when he helped design the Bush administration’s torture program, however, go into far greater detail than the Armed Services Committee’s report in explaining how prisoners would be broken down physically and psychologically by their captors. The notes say survival training students could “combat interrogation and torture” if they are captured by an enemy regime by undergoing intense training exercises, using “cognitive” and “exposure techniques” to develop “stress inoculation.” [Click here to download a PDF file of Jessen's handwritten notes. Click here to download a zip file of Jessen's notes in typewritten form.]

The documents stand as the first piece of hard evidence to surface in nine years that further explains the psychological aspects of the Bush administration’s torture program and the rationale for subjecting detainees to so-called “enhanced interrogation techniques.”

Jessen’s notes were provided to Truthout by retired Air Force Capt. Michael Kearns, a “master” SERE instructor and decorated veteran who has previously held high-ranking positions within the Air Force Headquarters Staff and Department of Defense (DoD).

Kearns and his boss, Roger Aldrich, the head of the Air Force Intelligence’s Special Survial Training Program (SSTP), based out of Fairchild Air Force Base in Spokane, Washington, hired Jessen in May 1989. Kearns, who was head of operations at SSTP and trained thousands of service members, said Jessen was brought into the program due to an increase in the number of new survival training courses being taught and “the fact that it required psychological expertise on hand in a full-time basis.”

“Special Mission Units”

Jessen, then the chief of Psychology Service at the US Air Force Survival School, immediately started to work directly with Kearns on “a new course for special mission units (SMUs), which had as its goal individual resistance to terrorist exploitation.”

The course, known as SV-91, was developed for the Survival Evasion Resistance Escape (SERE) branch of the US Air Force Intelligence Agency, which acted as the Executive Agent Action Office for the Joint Chiefs of Staff. Jessen’s notes formed the basis for one part of SV-91, “Psychological Aspects of Detention.”

Special mission units fall under the guise of the DoD’s clandestine Joint Special Operations Command (JSOC) and engage in a wide-range of highly classified counterterrorist and covert operations, or “special missions,” around the world, hundreds of who were personally trained by Kearns. The SV-91 course Jessen and Kearns were developing back in 1989 would later become known as “Special Survival for Special Mission Units.”

Before the inception of SV-91, the primary SERE course was SV-80, or Basic Combat Survival School for Resistance to Interrogation, which is where Jessen formerly worked. When Jessen was hired to work on SV-91, the vacancy at SV-80 was filled by psychologist Dr. James Mitchell, who was also contracted by the CIA to work at the agency’s top-secret black site prisons in Europe employing SERE torture techniques, such as the controlled drowning technique know as waterboarding, against detainees.

While they were still under contract to the CIA, the two men formed the “consulting” firm Mitchell, Jessen & Associates in March 2005. The “governing persons” of the company included Kearns’ former boss, Aldrich, SERE contractor David Tate, Joseph Matarazzo, a former president of the American Psychological Association and Randall Spivey, the ex-chief of Operations, Policy and Oversight Division of JPRA.

Mitchell, Jessen & Associates’ articles of incorporation have been “inactive” since October 22, 2009 and the business is now listed as “dissolved,” according to Washington state’s Secretary of State website.

Lifting the “Veil of Secrecy”

Capt. Michael Kearns (left) and Dr. Bruce Jessen at Fort Bragg's Nick Rowe SERE Training Center, 1989. Photo courtesy of retired Air Force Capt. Michael Kearns.

Kearns was one of only two officers within DoD qualified to teach all three SERE-related courses within SSTP on a worldwide basis, according to a copy of a 1989 letter written by Aldrich, who nominated Kearns officer of the year.

He said he decided to come forward because he is outraged that Jessen used their work to help design the Bush administration’s torture program.

“I think it’s about time for SERE to come out from behind the veil of secrecy if we are to progress as a moral nation of laws,” Kearns said during a wide-ranging interview with Truthout. “To take this survival training program and turn it into some form of nationally sanctioned, purposeful program for the extraction of information, or to apply exploitation, is in total contradiction to human morality, and defies basic logic. When I first learned about interrogation, at basic intelligence training school, I read about Hans Scharff, a Nazi interrogator who later wrote an article for Argosy Magazine titled ‘Without Torture.’ That’s what I was taught – torture doesn’t work.”

What stands out in Jessen’s notes is that he believed torture was often used to produce false confessions. That was the end result after one high-value detainee who was tortured in early 2002 confessed to having information proving a link between the late Iraqi dictator Saddam Hussein and al-Qaeda, according to one former Bush administration official.

It was later revealed, however, that the prisoner, Ibn al-Shaykh al-Libi, had simply provided his captors a false confession so they would stop torturing him. Jessen appeared to be concerned with protecting the US military against falling victim to this exact kind of physical and psychological pressure in a hostile detention environment, recognizing that it would lead to, among other things, false confessions.

In a paper Jessen wrote accompanying his notes, “Psychological Advances in Training to Survive Captivity, Interrogation and Torture,” which was prepared for the symposium: “Advances in Clinical Psychological Support of National Security Affairs, Operational Problems in the Behavioral Sciences Course,” he suggested that additional “research” should be undertaken to determine “the measurability of optimum stress levels in training students to resist captivity.”

“The avenues appear inexhaustible” for further research in human exploitation, Jessen wrote.

Such “research” appears to have been the main underpinning of the Bush administration’s torture program. The experimental nature of these interrogation methods used on detainees held at Guantanamo and at CIA black site prisons have been noted by military and intelligence officials. The Armed Services Committee report cited a statement from Col. Britt Mallow, the commander of the Criminal Investigative Task Force (CITF), who noted that Guantanamo officials Maj. Gen. Mike Dunleavy and Maj. Gen. Geoffrey Miller used the term “battle lab” to describe the facility, meaning “that interrogations and other procedures there were to some degree experimental, and their lessons would benefit [the Department of Defense] in other places.”

What remains a mystery is why Jessen took a defensive survival training course and assisted in turning it into an offensive torture program.

Truthout attempted to reach Jessen over the past two months for comment, but we were unable to track him down. Messages left for him at a security firm in Alexandria, Virginia he has been affiliated with were not returned and phone numbers listed for him in Spokane were disconnected.

A New Emphasis on Terrorism

SV-91 was developed to place a new emphasis on terrorism as SERE-related courses pertaining to the cold war, such as SV-83, Special Survival for Sensitive Reconnaissance Operations (SRO), whose students flew secret missions over the Soviet Union, Eastern Bloc, and other communist countries, were being scaled back.

The official patch and coin of the Special Survival Training Program. (Photo courtesy of retired Air Force Capt. Michael Kearns)

SSTP evolved into the Joint Personnel Recovery Agency (JPRA), the DoD’s executive agency for SERE training, and was tapped by DoD General Counsel William “Jim” Haynes in 2002 to provide the agency with a list of interrogation techniques and the psychological impact those methods had on SERE trainees, with the aim of utilizing the same methods for use on detainees. Aldrich was working in a senior capacity at JPRA when Haynes contacted the agency to inquire about SERE.

The Army also runs a SERE school as does the Navy, which had utilized waterboarding as a training exercise on Navy SERE students that JPRA recommended to DoD as one of the torture techniques to use on high-value detainees.

The Army also runs a SERE school as does the Navy, which had utilized waterboarding as a training exercise on Navy SERE students that JPRA recommended to DoD as one of the torture techniques to use on high-value detainees.

Kearns said the value of Jessen’s notes, particularly as they relate to the psychological aspects of the Bush administration’s torture program, cannot be overstated.

“The Jessen notes clearly state the totality of what was being reverse-engineered – not just ‘enhanced interrogation techniques,’ but an entire program of exploitation of prisoners using torture as a central pillar,” he said. “What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is exploitation, not specifically interrogation. And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”

Ironically, in late 2001, while the DoD started to make inquiries about adapting SERE methods for the government’s interrogation program, Kearns received special permission from the US government to work as an intelligence officer for the Australian Department of Defence to teach the Australian Special Air Service (SAS) how to use SERE techniques to resist interrogation and torture if they were captured by terrorists. Australia had been a staunch supporter of the invasion of Afghanistan and sent troops there in late 2001.

Kearns, who recently waged an unsuccessful Congressional campaign in Colorado, was working on a spy novel two years ago and dug through boxes of “unclassified historical materials on intelligence” as part of his research when he happened to stumble upon Jessen’s notes for SV-91. He said he was “deeply shocked and surprised to see I’d kept a copy of these handwritten notes as certainly the originals would have been destroyed (shredded)” once they were typed up and made into proper course materials.

“I hadn’t seen these notes for over twenty years,” he said. “However, I’ll never forget that day in September 2009 when I discovered them. I instantly felt sick, and eventually vomited because I felt so badly physically and emotionally that day knowing that I worked with this person and this was the material that I believe was ‘reverse-engineered’ and used in part to design the torture program. When I found the Jessen papers, I made several copies and sent them to my friends as I thought this could be the smoking gun, which proves who knew what and when and possibly who sold a bag of rotten apples to the Bush administration.”

Kearns was, however, aware of the role SERE played in the torture program before he found Jessen’s notes, and in July 2008, he sent an email to the chairman of the Armed Services Committee, Sen. Carl Levin, who was investigating the issue and offered to share information with Levin about Jessen and the SERE program in general. The Michigan Democrat responded to Kearns saying he was “concerned about this issue” and that he “needed more information on the subject,” but Levin never followed up when Kearns offered to help.

“I don’t know how it went off the tracks, but the names of the people who testified at the Senate Armed Services, Senate Judiciary, and Select Intelligence committees were people I worked with, and several I supervised,” Kearns said. “It makes me sick to know people who knew better allowed this to happen.”

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Levin’s office did not return phone calls or emails for comment. However, the report he released in April 2009, “Inquiry Into the Treatment of Detainees in US Custody,” refers to SV-91. The report includes a list of acronyms used throughout the report, one of which is “S-V91,” identified as “the Department of Defense High Risk Survival Training” course. But there is no other mention throughout the report of SV-91 or the term “High Risk Survival Training,” possibly due to the fact that sections of the report where it is discussed remain classified. Still, the failure by Levin and his staff to follow up with Kearns–the key military official who had retained Jessen’s notes and helped develop the very course those notes were based upon that was cited in the report–suggests Levin’s investigation is somewhat incomplete.

Control and Dependence

A copy of the syllabus for SV-91, obtained by Truthout from another source who requested anonymity, states that the class was created “to provide special training for selected individuals that will enable them to withstand exploitation methods in the event of capture during peacetime operations…. to cope with such exploitation and deny their detainers useable information or propaganda.”

Although the syllabus focuses on propaganda and interrogation for information as the primary means of exploiting prisoners, Jessen’s notes amplify what was taught to SERE students and later used against detainees captured after 9/11 . He wrote that a prisoner’s captors seek to “exploit” the prisoner through control and dependence.

“From the moment you are detained (if some kind of exploitation is your Detainer’s goal) everything your Detainer does will be contrived to bring about these factors: CONTROL, DEPENDENCY, COMPLIANCE AND COOPERATION,” Jessen wrote. “Your detainer will work to take away your sense of control. This will be done mostly by removing external control (i.e., sleep, food, communication, personal routines etc. )…Your detainer wants you to feel ‘EVERYTHING’ is dependent on him, from the smallest detail, (food, sleep, human interaction), to your release or your very life … Your detainer wants you to comply with everything he wishes. He will attempt to make everything from personal comfort to your release unavoidably connected to compliance in your mind.”

Jessen wrote that cooperation is the “end goal” of the detainer, who wants the detainee “to see that [the detainer] has ‘total’ control of you because you are completely dependent on him, and thus you must comply with his wishes. Therefore, it is absolutely inevitable that you must cooperate with him in some way (propaganda, special favors, confession, etc.).”

Jessen described the kinds of pressures that would be exerted on the prisoner to achieve this goal, including “fear of the unknown, loss of control, dehumanization, isolation,” and use of sensory deprivation and sensory “flooding.” He also included “physical” deprivations in his list of detainer “pressures.”

“Unlike everyday experiences, however, as a detainee we could be subjected to stressors/coercive pressures which we cannot completely control,” he wrote. “If these stressors are manipulated and increased against us, the cumulative effect can push us out of the optimum range of functioning. This is what the detainer wants, to get us ‘off balance.’”

“The Detainer wants us to experience a loss of composure in hopes we can be manipulated into some kind of collaboration…” Jessen wrote. “This is where you are most vulnerable to exploitation. This is where you are most likely to make mistakes, show emotions, act impulsively, become discouraged, etc. You are still close enough to being intact that you would appear convincing and your behavior would appear ‘uncoerced.’”

Kearns said, based on what he has read in declassified government documents and news reports about the role SERE played in the Bush administration’s torture program, Jessen clearly “reverse-engieered” his lesson plan and used resistance methods to abuse “war on terror” detainees.

The SSTP course was “specifically and intentionally designed to assist American personnel held in hostile detention,” Kearns said. It was “not designed for interrogation, and certainly not torture. We were not interrogators we were ‘role-players’ who introduced enemy exploitation techniques into survival scenarios as student learning objectives in what could be called Socratic-style dilemma settings. More specifically, resistance techniques were learned via significant emotional experiences, which were intended to inculcate long-term valid and reliable survival routines in the student’s memory. The one rule we had was ‘hands off.’ No (human intelligence) operator could lay hands on a student in a ‘role play scenario’ because we knew they could never ‘go there’ in the real world.”

But after Jessen was hired, Kearns contends, Aldrich immediately trained him to become a mock interrogator using “SERE harsh resistance to interrogation methods even though medical services officers were explicitly excluded from the ‘laying on’ of hands in [resistance] ‘role-play’ scenarios.”

Aldrich, who now works with the Center for Personal Protection & Safety in Spokane, did not return calls for comment.

“Torture Paper”

The companion paper Jessen wrote included with his notes, which was also provided to Truthout by Kearns, eerily describes the same torturous interrogation methods US military personnel would face during detention that Jessen and Mitchell “reverse engineered” a little more than a decade later and that the CIA and DoD used against detainees.

Indeed, in a subsection of the paper, “Understanding the Prisoner of War Environment,” Jessen notes how a prisoner will be broken down in an attempt to get him to “collaborate” with his “detainer.”

“This issue of collaboration is ‘the most prominent deliberately controlled force against the (prisoner of war),” Jessen wrote. “The ability of the (prisoner of war) to successfully resist collaboration and cope with the obviously severe approach-avoidance conflict is complicated in a systematic and calculated way by his captors.

“These complications include: Threats of death, physical pressures including torture which result in psychological disturbances or deterioration, inadequate diet and sanitary facilities with constant debilitation and illness, attacks on the mental health via isolation, reinforcement of anxieties, sleeplessness, stimulus deprivation or flooding, disorientation, loss of control both internal and external locus, direct and indirect attack on the (prisoner of war’s) standards of honor, faith in himself, his organization, family, country, religion, or political beliefs … Few seem to be able to hold themselves completely immune to such rigorous behavior throughout all the vicissitudes of long captivity. Confronted with these conditions, the unprepared prisoner of war experiences unmanageable levels of fear and despair.”

“Specific (torture resistance) techniques,” Jessen wrote, “taught to and implemented by the military member in the prisoner of war setting are classified” and were not discussed in the paper he wrote. He added, “Resistance Training students must leave training with useful resistance skills and a clear understanding that they can successfully resist captivity, interrogation or torture.”

Kearns also declined to cite the specific interrogation techniques used during SERE training exercises because that information is still classified. Nor would he comment as to whether the interrogations used methods that matched or were similar to those identified in the August 2002 torture memo prepared by former Justice Department attorneys John Yoo and Jay Bybee.

However, according to the Senate Armed Services Committee report “SERE resistance training … was used to inform” Yoo and Bybee’s torture memo, specifically, nearly a dozen of the brutal techniques detainees were subjected to, which included waterboarding, sleep deprivation, painful stress positions, wall slamming and placing detainees in a confined space, such as a container, where his movement is restricted. The CIA’s Office of Technical Services told Yoo and Bybee the SERE techniques used to inform the torture memo were not harmful, according to declassified government documents.

Many of the “complications,” or torture techniques, Jessen wrote about, declassified government documents show, became a standard method of interrogation and torture used against all of the high-value detainees in custody of the CIA in early 2002, including Abu Zubaydah and self-professed 9/11 mastermind Khalid Sheikh Mohammed, as well as detainees held at Guantanamo and prison facilities in Iraq and Afghanistan.

The issue of “collaborating” with one’s detainer, which Jessen noted was the most important in terms of controlling a prisoner, is a common theme among the stories of detainees who were tortured and later released from Guantanamo.

For example, Mamdouh Habib, an Australian citizen who was rendered to Egypt and other countries where he was tortured before being sent to Guantanamo, wrote in his memoir, “My Story: the Tale of a Terrorist Who Wasn’t,” after he was released without charge, that interrogators at Guantanamo “tried to make detainees mistrust one another so that they would inform on each other during interrogation.”

Binyam Mohamed, am Ethiopian-born British citizen, who the US rendered to a black site prison in Morocco, said that a British intelligence informant, a person he knew and who was recurited, came to him in his Moroccan cell and told him that if he became an intelligence asset for the British, his torture, which included scalpel cuts to his penis, would end. In December 2009, British government officials released documents that show Mohamed was subjected to SERE torture techniques during his captivity in the spring of 2002.

Abdul Aziz Naji, an Algerian prisoner at Guantanamo until he was forcibly repatriated against his wishes to Algeria in July 2010, told an Algerian newspaper that “some detainees had been promised to be granted political asylum opportunity in exchange of [sic] a spying role within the detention camp.”

Mohamedou Ould Salahi, whose surname is sometimes spelled “Slahi,” is a Mauritanian who was tortured in Jordan and Guantanamo. Investigative journalist Andy Worthington reported that Salahi was subjected to “prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantanamo and gang-raped” unless he collaborated with his interrogators. Salahi finally decided to become an informant for the US in 2003. As a result, Salahi was allowed to live in a special fenced-in compound, with television and refrigerator, allowed to garden, write and paint, “separated from other detainees in a cocoon designed to reward and protect.”

Still, despite collaborating with his detainers, the US government mounted a vigorous defense against Salahi’s petition for habeas corpus. His case continues to hang in legal limbo. Salahi’s fate speaks to the lesson Habib said he learned at Guantanamo: “you could never satisfy your interrogator.” Habib felt informants were never released “because the Americans used them against the other detainees.”

Jessen’s and Mitchell’s mutimillion dollar government contract was terminated by CIA Director Leon Panetta in 2009. According to an Associated Press report, the CIA agreed to pay – to the tune of $5 million – the legal bills incurred by their consulting firm.

Recently a complaint filed against Mitchell with the Texas State Board of Examiners of Psychologists by a San Antonio-based psychologist, an attorney who defended three suspected terrorists imprisoned at Guantanamo and by Zubaydah’s attorney Joseph Margulies. Their complaint sought to strip Mitchell of his license to practice psychology for violating the board’s rules as a result of the hands-on role he played in torturing detainees, was dismissed due to what the board said was a lack of evidence. Mitchell, who lives in Florida, is licensed in Texas. A similar complaint against Jessen may soon be filed in Idaho, where he is licensed to practice psychology.

Kearns, who took a graduate course in cognitive psychotherapy in 1988 taught by Jessen, still can’t comprehend what motivated his former colleague to turn to the “dark side.”

“Bruce Jessen knew better,” Kearns said, who retired in 1991 and is now working on his Ph.D in educational psychology. “His duplicitous act is appalling to me and shall haunt me for the rest of my life.”

Image/ABC News

Danny Robbins at Associated Press reported last Friday that the Texas State Board of Examiners dismissed a licensing complaint filed by a Texas psychologist against former SERE psychologist James Mitchell. Mitchell was accused of “violating the standards demanded by the Psychologists‘ Licensing Act and the Board‘s Rules of Practice” (PDF). Specifically, the complaint cited Mitchell’s role in the design and implementation of a torture program, “ignoring the complete lack of a scientific basis for the regime‘s safety and—assuming its safety—its effectiveness,” as well as his actual participation in the torture of prisoners such as Abu Zubaydah.

The complaint against Mitchell was filed on June 16, 2010, and was signed by Texas psychologist Jim L.H. Cox. Attorneys Dicky Grigg and Joseph Margulies were also signatories to the complaint. Grigg and Margulies have also represented Guantanamo prisoners before the government.

According to the AP story, “The board said there wasn’t enough evidence to prove Mitchell violated its rules,” despite the fact that “thousands of pages of evidence, including sworn testimony, tying Mitchell to practices that violate professional ethics” were presented to the board. It is not known if Mitchell utilized in his board defense any of the $5 million “indemnity” defense fund set up by the CIA for use in legal defense for Michell and his CIA contractor partner, Bruce Jessen.

The hearing was held on February 10. Proceedings were held in secret session, and only Mitchell and his representative were present before the three board members. No complainants were at the hearing. Two days later, the board issued its finding of dismissal. Strangely, no reports of the Texas board decision surfaced for another two weeks.

As AP notes, the Mitchell decision follows the dismissal of other cases brought before boards in New York, Ohio, and Louisiana, concerning other military psychologists, Major John Leso and Colonel Larry James. Late last year, the Center for Justice and Accountability and the New York ACLU filed asked a New York court “to order the New York Office of Professional Discipline (OPD) to perform its duty to investigate a complaint of professional misconduct against Dr. John Francis Leso, who, as asserted in the complaint, violated professional standards when he designed and participated in the abusive interrogation program at Guantánamo.”

Worldwide Actions to Hold the Torturers Accountable

The decision of the Texas state board also comes in the context of a number of legal actions worldwide to bring the Bush-era torturers to justice. Lawyers and international human rights activists and organizations continue to press for investigations and prosecutions of the torture of Abu Zubaydah and other “high-value” detainees held in CIA black site prisons around the world, or sent to foreign countries for torture as part of the U.S. “extraordinary rendition” program.

Most recently, the Spanish National Court announced it had the competent standing to proceed with the investigations into the torture of former Guantanamo prisoner Lahcen Ikassrien, since he had been a Spanish resident for 13 years. Center for Constitutional Rights said in regards to the decision:

Since the U.S. government has not only failed to investigate the illegal actions of its own officials and, according to diplomatic cables released by WikiLeaks, also sought to interfere in the Spanish judicial process and stop the case from proceeding, this will be the first real investigation of the U.S. torture program. This is a victory for accountability and a blow against impunity.

Meanwhile, in Poland, where the U.S. constructed one of the CIA black site prisons, authorities were stymied in their efforts to secure U.S. cooperation into their country’s investigation into the CIA activities at the black site near the Szymany air base in northern Poland. The Obama administration cited an international Agreement on Mutual Legal Assistance in Criminal Matters, whereby “a country has the right to refuse to provide legal assistance if the execution of the request would encroach on this country’s security or another interest of this country.” Requests for an investigation were forwarded by legal represenatives of former CIA prisoners Abu Zubaydah and Abd al-Rahim al-Nashiri.

In a direct rebuff to the United States, a Polish state prosecutor last January became “the first state official to accept Abu Zubaydah’s claims that he was a victim of extraordinary rendition and secret detention in Poland.” Zubaydah is being represented by Polish lawyer Bartlomiej Jankowski, who is working with the British human rights charities Interights and Reprieve, in addition to U.S. lawyers Joseph Margulies and Brent Mickum. Al-Nashiri was recognized as a “victim” of torture by Polish authorities last fall.

In Lithuania, where other black site prisons also operated, presumably near Vilnius, state authorities meanwhile have dropped investigations into torture, rendition and CIA activities. After initial support for an investigation of the prisons — one of them constructed at a former horse riding club — Prosecutor Darius Valys announced in January that the investigation was over. According to a report by Reprieve, Valys admitted “that three ex-security services agents had ‘abused their position’” but “oddly stopped short of addressing allegations of serious official crimes, including torture and illegal imprisonment.” In addition, the Lithuanian prosecutor made a pro forma nod to expired statutes of limitation, and also a bizarre charge that NGO “lack of transparency” had harmed the investigation.

Attorney Joseph Margulies replied, “The Prosecutor is trying to deflect blame for the failure of his investigation onto NGOs and the media. It’s ironic that an official investigation into a secret torture facility should claim to be thwarted because the media is insufficiently transparent.”

UK State Investigation Blasted by Human Rights Groups

A British government investigation into UK complicity with U.S. torture programs, announced last July after revelations in the UK court case on Binyam Mohamed, has met criticism from almost the beginning. In particular, the decision to have Sir Peter Gibson, the Intelligence Services Commissioner, responsible for monitoring secret bugging operations by MI5, MI6 and GCHQ (Britain’s version of the NSA), lead the investigation was questioned from the very start.

At this point, a number of British NGOs are so concerned that the inquiry, according to the UK Guardian,  “will fail to meet the UK’s obligations under international and domestic law,” that they are considering boycotting the proceedings. Nine of the NGOs – Amnesty International, Cageprisoners, JUSTICE, Liberty, the Medical Foundation for the Care of Victims of Torture, Redress, Reprieve, the AIRE Centre and British Irish Rights Watch — have written a letter to Gibson expressing their concerns.

The letter is substantive and detailed, and includes discussion of whether the inquiry as currently constituted can meet Article 3 (prohibition against torture) requirements of the European Convention on Human Rights and Fundamental Freedoms (ECHR) regarding promptness, independence, and thoroughness. In addition, the NGO signatories note the insufficiency of public scrutiny and victim participation, the lack of effective remedy and redress for victims, secrecy invoked over the material to be presented, and “the lack of any current powers to compel the production of documents or the attendance of witnesses.”

Another outstanding issue facing the inquiry concerns the last British resident in Guantanamo, Shaker Aamer. As Andy Worthington pointed out in an article on the torture inquiry, due to begin this coming week, Aamer “is still held despite being cleared for release by a military review board in 2007, when President Bush was still in power.” Aamer is the only British torture prisoner to directly claim “that British agents were in the room when he was tortured by US operatives in the US prison in Kandahar prior to his transfer to Guantánamo in February 2002.” Worthington notes that the British inquiry “cannot legitimately begin while he is still held,” as Aamer is a crucial witness as to UK participation, “whose testimony Sir Peter Gibson will need to hear if the inquiry is to have any credibility.”

What Is to Be Done?

It is perhaps unavoidable that the efforts to establish investigations and promote accountability have been led by attorneys and human rights activists (most of them attorneys, too, by the way). As a result, the movement for accountability appears to rise and fall based on the legal decisions of governments, administrative boards, military commissions, and non-U.S. governmental prosecutors. While these legal actions are necessary, and the lawyers and NGO personnel involved deserve our thanks, at the same time the anti-torture movement suffers from an over-reliance on legalism at the expense of social struggle to end the use of torture.

On the other end of the spectrum, groups that promote local activism to bring justice to torture victims or accountability to war criminals like John Yoo, tend to get lost in overly parochial approaches, which when they fail, as in the case of the defeat of a Berkeley, California measure to endorse resettling cleared Guantanamo detainees in that city, promote demoralization and/or endless rounds of campaigning, with little or no progress. While such activists also deserve praise for their efforts, behind the scenes they too express frustration over what course of action might bring greater success.

The underlying problem is political, and lies in a refusal to take on the legitimacy of the so-called “war on terror,” which the U.S. uses as an excuse for the extension of its power abroad in support of corporations that seek to extend their economic influence and power, and which are interpenetrated with the U.S. military and intelligence establishment in that effort. It is apposite to notice, too, the efforts of the government to interdict and obstruct the work of anti-government critics, as the recent revelations surrounding FBI abuse and HBGary make abundantly clear.

In addition, effective action means taking on the misleadership and perfidy of both political parties, both Democratic and Republican. The Obama administration’s refusal to investigate war crimes, and its implication in ongoing war crimes (abuse of prisoners, assassination, use of drones) has not seriously been challenged by the liberal establishment.

The issue of U.S. or British torture is not really separable from issues of war abroad and domestic crackdown on civil liberties at home. Nor is it separable from the economic policies of the United States, which under both political parties has favored the enrichment of a privileged class over the immiseration of large portions of the population.

Nothing demonstrates the bankruptcy of the current ruling elites than the use of torture and assassination. The fight against torture must mean a full political assault against the legitimacy of a state apparatus and its defenders, who use such horrific means as torture as a bulwark against those who they fear challenge their rule and privileges. It must also involve the full use of the social power of civil society (unions, churches, professional organizations), which thus far have remained wedded to leaderships that will not challenge the electoral mastery of a morally and politically bankrupt two-party system.

Originally published at Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com.

Former Office of Legal Counsel Acting Chief Steven Bradbury

In a report I published April 5, I described the years-long controversy within the military services over the use of waterboarding in SERE training, which left the Navy SERE school in North Island, California the last remaining survival school to use the technique on its students. The executive authority for SERE, the Joint Personnel Recovery Agency, had argued for its elimination as as an unsafe technique with deleterious psychological and possibly physiological consequences upon trainees, causing them to be “psychologically defeated.” The North Island school ended use of waterboarding in November 2007.

In the May 10, 2005 “techniques” memorandum by Steven Bradbury to CIA Senior Deputy Counsel, John Rizzo, Bradbury mentioned the waterboarding issue at the SERE schools, in a footnote (H/T Marcy Wheeler). “We understand that the waterboard is currently used only in Navy SERE training,” Bradbury wrote. He explained that the CIA Inspector General report on the Agency’s interrogation program mentioned that “individuals with authoritative knowledge of the SERE program” believed that waterboarding had been excluded from most of the SERE schools “because of its dramatic effect on the students who were subjects.”

Despite the presence of this unexplained “dramatic effect,” Bradbury continued:

We understand that use of the waterboard was discontinued by the other services not because of any concerns about physical or mental harm, but because students were not successful at resisting the technique, and, as such, it was not considered to be a useful training technique.

Bradbury received his assurances from the CIA’s Office of Medical Services (OMS), who he quotes as saying “[w]hile SERE trainers believe that trainees are unable to maintain psychological resistance to the waterboard, our experience was otherwise.” OMS soothingly assures that “Some subjects can unquestionably withstand a large number of applications,” with no harm greater than a “strong aversion to the experience.” The testimony of the “SERE trainers” is blithely brushed aside, and no questions are asked about what it means to be “unable to maintain psychological resistance.”

Even more, Bradbury and OMS’s assurances don’t correspond with the evidence from JPRA internal documents, which describe the use of waterboarding as leaving students “psychologically defeated” and impaired in the ability to develop “psychological hardiness.” Furthermore, as a Truthout article last month notes, the discontinuance of waterboarding was not due to mere failure at resistance to the technique. They were finding measures of physiological harm.

The Navy SERE school in Brunswick, Maine, discontinued the use of waterboarding in its training curriculum after a SERE psychologist found via “empirical medical data … elevated levels of cortisol in the brain stem caused by stress levels incurred during water boarding.” Cortisol is a stress hormone released by the adrenal glands as part of the body’s fight-or-flight mechanisms. Excess cortisol can lead to chronic stress, impaired cognitive abilities, thyroid problems, suppressed immune functioning, high blood pressure, and other health problems.

The origins of misinformation about waterboarding go back to the original Yoo/Bybee memos in August 2002. Emptywheel has been following the story around the machinations surrounding the composition of these memos pretty closely (see here, and here, and here). In the memo to Rizzo on the interrogation of Abu Zubaydah, John Yoo writes:

With respect to the waterboard, you have also orally informed us that the Navy continues to use it in training. You have informed us that your on-site psychologists, who have extensive experience with the use of the waterboard in Navy training, have not encountered any significant long-term mental health consequences from its use…. JPRA has likewise not reported any significant long-term mental health consequences from the use of the waterboard.

Yoo explains the cessation of waterboarding training as due to the fact “it was so successful as an interrogation technique,” and not because of any concerns over harm from its use. This is, we know now, plainly not the case. Is it any surprise that the Navy SERE psychologists clung to their use of waterboarding, and that Yoo and the CIA found a willing group of practitioners to give them the fairy tale story they desired? The use of anecdotal statements from biased participants does not add up to due diligence or reliance on experts.

In fact, no long-term study on the effects of waterboarding, or SERE techniques in general, has ever been made, or at least made public. If there were such a study, and its results backed the contentions of Yoo and the CIA, you can be sure we would have heard of it. Instead, we have the statements of JPRA professionals that the use of waterboarding in SERE training was risky, potentially dangerous, and produced a condition known as “learned helplessness.” My next article will expand on what the dangers of learned helplessness entail from a psychological and physiological standpoint.

Next: “Learned Helplessness” and the waterboard

This report was originally published at Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com

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.]