CIA Report on Torture Program

The Obama administration is no different than other administrations in that they dump news on Friday hoping that no one is paying attention. Fortunately, I’m a dork and I love seeing what they try and sneak past us each week.

Today the Office of Professional Responsibility released their report on whether Bush administration lawyers broke the law when they decided torturing fellow human beings was cool.

According to the report the OPR found misconduct, but DoJ career attorney David Margolis didn’t have a problem with Jay Bybee and John Yoo’s legal justification for torture.

Here’s what Margolis wrote:

In keeping with usual Department practice, I invited Bybee and Yoo to submit responses to OPR’s final report. They submitted those responses on October 9, 2009, and the matter is no ripe for discussion. My task is a narrow one. The OPR report addresses a number of topics without reaching misconduct fundings against any Department attorney. I did not review OPR’s analysis of those topics. For example, during the course of its investigation, OPR reviewed prosecutive declinations regarding interrogations of certain detainees, but I have not examined its analysis of those issues. In addition, OPR reviewed and analyzed several memoranda authored by former OLC attorney Steve Bradbury. Because that review did not result in a finding of misconduct or poor judgement, I have not reviewed that analysis. Rather, my review was strictly limited to the findings of misconduct against Yoo and Bybee.

For the reasons state below, I do not adopt OPR’s finding of misconduct. This decision should not be viewed as an endorsement of the legal work that underlies those memoranda. However, OPR’s own analytical framework defines “professional misconduct” such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct. I am unpersuaded that OPR has identified such a standard. For this reason and based on the additional analysis set forth below, I cannot adopt OPR’s findings of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where Yoo and Bybee are licensed.

Here are the newly released documents from OPR and DoJ.
Career DoJ attorney David Margolis Admonishes Torture Lawyers
John Yoo Response to DoJ Torture Investigation
Office of Professional Responsibility Second Report on Torture
Office of Professional Responsibility First Report on Torture
Bybee Response to OPR’s Draft Report
John Yoo Response to OPR Draft Report on Torture

Here’s my archive of torture memos and reports
Jay Bybee torture memo August 1, 2002
Steven Bradbury torture memo May 10, 2005
Steven Bradbury to John Rizzo about torture program May 10, 2005
Steven Bradbury to Rizzo torture memo
De-classified CIA report on Bush torture program

Attorney General Eric Holder

The only question remaining now is whether former Vice President Dick Cheney personally participated in waterboarding people. When it comes to torture, hell yes, Cheney was totally on board.

On Sunday, Cheney unequivocally stated the Bush administration tortured prisoners. On ABC’s “This Week” Cheney said, “I was a big supporter of waterboarding.”

I guess one could argue that waterboarding isn’t torture, or illegal. But if you remember Vietnam, you might recall the story about the US soldier who was court-martialled for waterboarding a North Vietnamese prisoner. The Washington Post ran a photo of the torture.

That was back when the US had a news media willing and able to challenge the government. Now we just have media without the news.

“Water boarding was designated as illegal by US generals in Vietnam 40 years ago,” ABC News reported in 2005 in their story “History of an Interrogation Technique: Water Boarding.”

Sen. John McCain(R-Ariz), who was tortured as a POW in Vietnam, said the water-board technique is a “very exquisite torture” that should be outlawed, according to the ABC News report.

Waterboarding has been outlawed. We signed the Geneva Convention that prohibits torture. And here’s what the US Justice Department’s Criminal Manual says about torture.

Section 2340A of Title 18, United States Code, prohibits torture committed by public officials under color of law against persons within the public official’s custody or control. Torture is defined to include acts specifically intended to inflict severe physical or mental pain or suffering. (It does not include such pain or suffering incidental to lawful sanctions.) The statute applies only to acts of torture committed outside the United States. There is Federal extraterritorial jurisdiction over such acts whenever the perpetrator is a national of the United States or the alleged offender is found within the United States, irrespective of the nationality of the victim or the alleged offender.

So where’s the Justice Department investigation Attorney General Eric Holder was yammering about last year?

The story is that Holder is waiting on the Office of Professional Responsibility to complete its report on the Bush torture program. Well, it’s been a year now, and it looks a lot more like a cover-up than an investigation.

The sad truth is that this is NOT a nation of laws but rather men, and this case proves that. These men can break any law they want and get away with it.

Maybe an international war crimes tribunal is a more appropriate venue anyway?

–

Here are links to stories last year about the pending Bush torture investigation.
Criminal investigation into CIA treatment of detainees expected LA Times
Top prosecutor orders probe into interrogations; Obama shifts onus CNN
Holder Probe Would Be Big Break From Bush Torture Policy Washington Independent
Justice Dept. Report Advises Pursuing C.I.A. Abuse Cases New York Times

Andrew McCarthy National Review Institute Senior Fellow

Today C-SPAN and C-SPAN 2 provided full coverage of the conservative media watchdog Accuracy in Media’s 40th Anniversary Conference. Right-wing speakers came from across the country, and even one from Ireland, to the Omni Shoreham Hotel in Washington, DC today to say that torture is good, organic food is bad, global warming is a hoax or at least a good thing, Al Gore is not evil just wrong and journalists are patsies for the Democratic Party.

Let’s talk about torture.

Andrew McCarthy is a senior fellow at the National Review Institute. He spoke about the Bush torture memos and how without torture the US could get hit again with another 9/11 attack.

Torture’s not torture if lawyers say it’s not.

“The Bush torture memos are a methodical effort first to identify the legal line separating torture from permissibly aggressive questioning, and second, to steer the CIA interrogators away from that line,” McCarthy said, “ensuring that they were not violating the law.”

He said that the Bush torture memos “actually prove a motive not to torture.”

The current torture investigation by Attorney General Eric Holder is all about politics – not justice.

“That is why the ongoing investigations of the Bush administration officials, and the CIA interrogators are so shameful. It is sheer, brute, noxious politicizing of our justice system,” McCarthy said.

To legally be considered torture, he asserted that the intent of the interrogators has to be considered. In May, Attorney General Eric Holder was questioned by Congress as to whether the training exercise of water-boarding US Navy Seals was torture. Holder said that it wasn’t torture because the intent was to train and not to inflict physical or mental harm.

And that’s the issue – intent. According to McCarthy, Holder’s statements proves that the Bush administration did not torture anyone because the intent was not to inflict pain but to get information by inflicting pain.

“We didn’t water-board Khalid Sheikh Mohammed, and a grand total of two to other terrorists six years ago,” McCarthy reasoned, “in order to torment them physically or mentally, we did it to obtain lifesaving intelligence.”

By supporting a policy of timidity, as he said the Obama administration is now doing and evidently the Bush administration was implementing prior to 9/11, the president sends a message to the intelligence community “not to take the measures necessary to prevent another 9/11. And that is how the last 9/11 happened,” McCarthy theorized.

“And now here we are back in a September 10th world. Only I think it’s worse now.” McCarthy added, “It is the stuff of Banana Republics. It is the stuff of tyranny.”

Accuracy in Media is a non-profit “conservative media” watchdog group “that critiques botched and bungled news stories and sets the record straight on important issues that have received slanted coverage,” according the organization’s Web site.

In an effort to maintain a valid public record, here’s another batch of Bush administration torture memos. All of them were written by Steven G. Bradbury except one by Jay Bybee.

Steven Bradbury Torture Memo from May 10, 2005

Jay Bybee torture memo August 1, 2002

Steven G. Bradbury torture memo May 10, 2005

Steven G. Bradbury torture memo May 30, 2005

Steven G. Bradbury

It’s not light reading and it kind of makes me want to puke, but the “opinion” written by Steven G. Bradbury in 2007 regarding the CIA’s torture program is so disgusting that I’m going to have to read it in chunks.

I didn’t get too far today, I stopped at page eight. This is the part where Bradbury describes the “conditioning technique” called “dietary manipulation.”

“Dietary manipulation would involve substituting a bland, commercial liquid meal for a detainee’s normal diet. As a guidline, the CIA would use a formula for calorie intake that depends on a detainee’s body weight and expected level of activity. This formula would ensure that calorie intake will always be at least 1,000 kcal/day, and that it usually would be significantly higher. By comparison, commercial weight-loss programs used within the United States commonly limit intake to 1,000 kcal/day regardless of body weight. CIA medical officers ensure that the detainee is provided and accepts adequate fluid and nutrition, and frequent monitoring by medical personnel takes place while any detainee is undergoing dietary manipulation. Detainees would be monitored at all times to ensure that they do not lose more than ten percent of their starting body weight, and if such weight loss were to occur, application of the technique would be discontinued. The CIA also would ensure that detainees, at a minimum, drink 35 ml/kg/day of fluid, but a detainee undergoing dietary manipulation may drink as much water as he reasonably pleases.” — Principal Deputy Assistant Attorney General Steven G. Bradbury wrote in his July 20, 2007 memo.

Just to be clear, Bradbury actually cited the US weight-loss industry as a source of information in defending the humanity of “dietary manipulation.” The difference, I assumed was obvious, is that Americans who go on a weight-loss program are doing so voluntarily. And the number of people who are functioning on 1,000 kcal a day are a rare breed indeed.

Steven G. Bradbury memo on torture

It doesn’t matter though.

What does matter is that Bradbury is trying to make the case that there are six torture techniques that are lawful: dietary manipulation, extended sleep deprivation, facial holding, attention grasping, abdominal slapping and facial slapping (also known as the bitch slap). I know, that’s a lot of slapping and holding, and there’s more than a hint of homo-erotic imagery here, but let’s stay focused. I wonder if they had a safe word. Pineapple!

Can we have a minute for the doctors, I assume they’re doctors, monitoring these torture sessions? Isn’t there some sort of Hippocratic Oath preventing them from harming a patient? And having doctors monitoring prisoners while they’re being tortured doesn’t provide a legal basis for torturing people – it just sounds even creepier.

Attorney General Eric Holder

The good news is that Obama’s Attorney General Eric Holder issued a press release on March 2, 2009 proclaiming that the opinions of certain Bush lawyers, such as Bradbury, “no longer reflect the views of OLC and ‘should not be treated as authoritative for any purpose.’”

The question today is whether President Obama has the right to not investigate this torture program. Can he, having taken an oath to uphold the Constitution, just simply ignore what are apparently flagrant abuses of power? Or does Obama want the option of torturing people too? Obama continues to pursue the Bush policy of sending prisoners to other countries, presumably because torture is allowed (e.g. Obama’s High-value detainee Interrogation Group, known as HIG, Holder said it “would be gathering intelligence to prevent terrorist attacks and otherwise to protect national security”).

Last week Holder announced that there will be an investigation into the Bush administration’s torture program, but it would be very limited in scope.

–
Steven G. Bradbury July 20, 2007 memo on legality of torture techniques
Steven G. Bradbury Wiki
Hippocratic Oath

US soldiers torturing a prisoner at Abu Graib in Iraq.

In case you missed it … You paid to have people tortured and possibly murdered. Your tax dollars went to train CIA employees on how to torture people. And according to recently declassified documents, it appears some prisoners died in the process. What’s more disturbing is that since President Obama has not clearly reinstated a prohibition on torture, you can only assume it’s still happening today.

If I were a member of the elite White House press corpse (yeah I know how to spell corps) I’d ask Obama why he doesn’t unequivocally state that his administration will not torture people. Sure, former President Bush said point blank: “We do not torture.” That didn’t mean much, but we have to assume that if Obama is specifically not prohibiting torture, he’s doing so to avoid lying, and thus by getting him to state he won’t torture, that could mean something. I know, it’s stupid wishful thinking.

CIA Report on Torture Program (17MB) 269 pages of pdf

The issue for Obama is that while he may not be using CIA employees to torture and murder people, he continues to pursue the Bush policy of rendition. Rendition is the process of sending prisoners to countries that aren’t bound by international treaties like the Geneva Convention that bans torture. What’s great about rendition is that the Egyptians or Syrians are doing all the torturing and stuff like that, so we don’t have to. Outsourcing.

Obama claims that he’s monitoring the treatment of these prisoners to make sure they aren’t tortured, but if they aren’t being tortured, why bother sending them there at all?

But like I said, I’m not a member of the elite White House press corpse.

Here are some of the highlights from the CIA’s Inspector General report on US torture program. And ellipse represents text that has been blacked out of the declassified document. I’ll provide more information as I make my way through the 269 pages of the report, but for now this stuff is pretty interesting.

CIA Report on Torture Program (17MB) 269 pages of pdf

“Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authrorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly other senior Al-Qaida high value detainees.” Page 9

“Working with DoJ’s Office of Legal Counsel(OLC), OGC determined that in most instances relevant to the counterterrorism detention and interrogation activities the criminal prohibition against torture, 18 U.S.C. 2340-2340B, is the controlling legal constraint on interrogations of detainees outside the United States. In August, 2002, DoJ provided to the Agency a legal opinion in which it determined that 10 specific ‘Enhanced Interrogation Techniques’ (EITs) would not violate the torture prohibition. This work provided the foundation for the policy and administrative decisions that guide the CTC Program.” Page 10

“By November 2002, the Agency had Abu Zubaydah and another high value detainee, ‘Abd Al-Rahim Al-Nashiri, in custody … and the Office of Medical Services (OMS) provided medical care to the detainees.” Page 10

“There were few instances of deviations from approved procedures … with one notable exception described in this Review. With respect to two detainees at those sites, the use and frequency of one EIT, the waterboard, went beyond the projected use of the technique as originally described by DoJ. The Agency, on 29 July 2003, secured oral DoJ concurrence that certain deviations are not significant for purposes of DoJ’s legal opinions.” Page 11

“there were instances of improvisation and other undocumented interrogation techniques.” Page 12

“Agency efforts to provide systematic clear and timely guidance to those involved in the CTC Detention and Interrogation Program was inadequate at first but have improved considerably during the life of the Program as problems have been identified and addressed. CTC implemented training programs for interrogators and debriefers.” Page 12

Here the footnote regarding “interrogators and debriefers” pointing to the torture training program. “Before 11 September (9/11) 2001, Agency personnel sometimes used the terms interrogation/interrogator and debriefing/debriefer interchangeably. The use of these terms has since evolved and, today, CTC more clearly distinguishes their meanings. A debriefer engages a detainee solely through question and answer. An interrogator is a person who complete a two-week interrogations training program, which is designed to train, qualify, and certify a person to administer EITs. An interrogator can administer EITs during an interrogation of a detainee only after the field, in coordination with Headquarters, assesses the detainee as withholding information. An interrogator transitions the detainee from a non-cooperative to a cooperative phase in order that a debriefer can elicit actionable intelligence through non-aggressive techniques during debriefing sessions. An interrogator may debrief a detainee during an interrogation; however, a debreifer may not interrogate a detainee.” Page 12

–
View complete CIA torture program report

It’s not news, but despite President Bush’s unambiguous statement back in 2005 that “We do not torture,” we do, or at least did, in fact torture.

Newly declassified CIA documents have been released highlighting the torture techniques utilized by intelligence agency employees between September 2001 to October 2003.

The report by the CIA Inspector General is titled “Counterterrorism Detention and Interrogation Activities.” It was previously declassified in 2007, but so much of the information was redacted that it was essentially meaningless, but the new report is much more informative, and it’s release is reportedly the reason Attorney General Eric Holder announced on Monday that he will be investigating the matter.

According to the report, prisoners were interrogated using techniques such as waterboarding, sleep deprivation, something called “the hard takedown,” threats to murder the prisoner’s family, and I’m still combing through the documents.

Now of course one can argue, as former Vice President Dick Cheney has been doing, that torture worked and these documents prove it, but no one can deny that the United States of America tortured human beings and that is a direct violation of international law. These are laws that Congress has said we as a nation will abide by. And according to the report, there was concern by some people in the CIA involved in torture that what they were doing could land them in a world court facing charges of war crimes.

But in terms of justifying breaking international law regarding torture – and I haven’t had a chance to review all 269 pages of this report – but I’ve yet to see proof that a) torturing people worked or b) that there was no other way to get the information, besides using torture.

It’s worth noting that even if torture “worked,” it doesn’t mean it was the correct and moral choice.

Here’s the full document for you to review (269 pages – 17MB).
“Counterterrorism Detention and Interrogation Activities (September 2001 – October 2003)” by the CIA Inspector General released August 2009.

Further reporting can be found here:
Cheney says documents show interrogations prevented attacks CNN
Report Shows Tight C.I.A. Control on Interrogations NY Times
CIA Report Details Interrogation Techniques NPR