Fired Up! posted audio of debate on a private prison bill in the Missouri House which caught a member of the republican leadership, Representative Brian Nieves, advocating torture: Great Moments in Legislating: Brian Nieves edition (Part 2)

Audio via Fired Up!

The transcript:

…Speaker: Further discussion. Gentleman from Franklin [County], for what purpose do you rise?

Representative Brian Nieves: To inquire of the handler.

Speaker: Gentleman from Johnson [County] yield?

Representative Denny Hoskins: Yes, Mister Speaker.

Speaker: He does. [crosstalk] Proceed.

Representative Nieves: How are you doing, gentleman?

Representative Hoskins: Great. How are you doing, gentlemen?

Representative Nieves: This is your first year around here, isn’t it?

Representative Hoskins: It is.

Representative Nieves: You probably figure out that over time there’s people that you learn to really respect and trust and maybe other people that you don’t. And the gentleman from Boone [County] is somebody that I do have a lot of respect for. And so he’s brought up, I think, some pretty valid comments. You know he talked about how he has a legitimate fear that there might be some things that would happen in these private prisons that would be of concern to him. And so it just made me wonder, you know, I, I don’t know exactly how these things operate. And I know, I  think you have one in your district. Is that right? [crosstalk]

Representative Hoskins: Yes, gentleman.

Representative Nieves: Okay. So, there, is there any regulation about, say for example a, something happens in the prison, something bad happens in the prison, and they need to interview or interrogate some of these prisoners? I mean is there regulations about what they can do? And, I guess more specifically, what I’d be asking you is, would, would they ever be able to waterboard somebody in, in one of these private prisons? I mean, can they? “Hey, hey, stop. I tell you anything you want to know.” I, I, can, can [laugh], can they waterboard people in these private prisons?

Representative Hoskins: I do not…[crosstalk]

Representative Nieves: Here’s the thing. I mean, there’s some people yesterday that were all concerned about waterboarding terrorists, as if that’s a bad thing to do. Now these are American citizens that are typically held in these, right? And they don’t get waterboarded. [crosstalk]

Representative Hoskins: Yes, gentleman.

Representative Nieves: Okay. [crosstalk]

Representative Hoskins: American citizens.

Representative Nieves: I want to make sure that American citizens don’t get waterboarded. I want to make sure you know, gentleman, that I am [emphasis] okay with waterboarding terrorists. I mean, I just want to make sure that you know that. Some blog tried to have some comment about me yesterday. Maybe they weren’t clear about my stand on waterboarding. I say that waterboarding is [emphasis] okay for terrorists. But I want to make sure that does not happen in these private prisons. [crosstalk]

Representative Hoskins: That does not happen.

Representative Nieves: Would you speak on that? [crosstalk]

Representative Hoskins: I’m with you on that.

Representative Nieves: ‘Cause I don’t want to see any waterboarding of American citizens, even if they are in a private prison.

Representative Hoskins: Correct.

Speaker: Gentleman from Jackson. For what purpose do you rise?

Speaker: Kander.

Representative Jason Kander: Point of order Mr. Speaker.

Speaker: Proceed.

Representative Jason Kander: The gentleman’s references to his rather offensive comments from yesterday, while interesting, have absolutely nothing to do with this.

Speaker: Gentleman, please avoid all personal comments on the floor. Further discussion. Actually, proceed the inquiry, gentleman. Franklin [County]. [crosstalk]

Representative Nieves: So, so, gentleman, I just want to, because we are specifically talkin’ about what happens in private prisons, okay? [crosstalk]

Representative Hoskins: Yes, private jails. Correct. [crosstalk]

Representative Nieves: And so I probably shouldn’t drift off, it’s very difficult, you know, when we’re talking about things to make sure that we stay on an absolute narrow path, but I just want to make sure. We had a little confusion. People jumped up and started waving things. So I just want to make sure you understood my question. And that you understand that I am not [emphasis], because you’re guy that has one of these in your district, you’re the one that’s handling this legislation. You’re kind of like the private prison expert within this body. I want to make sure that you know that I don’t think any of us in this body, myself included, would be in favor of waterboarding American citizens that are in a private prison. Are you with me on that?

Representative Hoskins: I’m with you on that, gentleman. [crosstalk]

Representative Nieves: And are you gonna, will you commit to me, just as you did the gentleman from Boone [County], I seem to have a little water on my face, I think somebody was trying to waterboard me a minute ago. Are you willing to commit to me, just as you did the gentleman from Boone [County], that if we need next year to talk about this, I mean, if somebody ever says that we should waterboard U.S. citizens in private prisons, are you committing to me that you’ll try to make sure that we don’t ever do that to American citizens?

Representative Hoskins: Yes. I would be against waterboarding [crosstalk] American citizens.

Representative Nieves: Because I just want to be very clear that I am okay with waterboarding terrorists, okay? I think it’s a good idea to waterboard terrorists, but not American citizens, okay? Can we work together on that?

Representative Hoskins: Yes, gentleman.

Representative Nieves Thank you gentleman. Thank you Mister Speaker.

Speaker: Further discussion…

Waterboarding was and continues to be a violation of federal statutes, treaty obligations, and the peremptory norms of international law:

The United States prosecuted individuals at the Tokyo War Crimes Trials for waterboarding prisoners of war and civilian detainees.

Changi Prison, October 1943

… The Japanese were trying to establish that there was a spy organization in Changi Prison which received and transmitted by radio telephony, which had established contacts in the town for the purpose of sabotage and [12937] stirring up of  anti-Japanese feeling, and which collected money from outside for this purpose. In fact, there was no organization, no radio transmission and no attempt to promote anti-Japanese activities outside the Camp…[12939]

…Usually interrogations started quietly and would continue as long as the inquisitors got the expected answers. If, for any reason, such answers were not forthcoming, physical violence was immediately…

…[12940] employed. The methods used were:

(1) Water Torture. There were two forms of water torture. In the first, the victim was tied or held down on his back and a cloth placed over his nose and mouth. Water was then poured on the cloth…

International Military Tribunal for the Far East – Pr
oceedings, p. 12,936.

[emphasis added]

The peremptory norms of international law and our treaty obligations:

Universal Declaration of Human Rights

advisory declaration adopted by

the United Nations General Assembly (December 10, 1948)

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

[emphasis added]

The Universal Declaration of Human Rights was presented after World War II. Its provisions made their way into the International Covenant on Civil and Political Rights, and as such, were ratified as norms of international law by the majority of civilized states in the world.

International Covenant on Civil and Political Rights

– in force September 8, 1992

Article 4. 1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 16. Everyone shall have the right to recognition everywhere as a person before the law.

[emphasis added]

The individuals who’s voices you hear in the recording of the debate have varied backgrounds.

Representative Jason Kander’s (D-44) bio:

Rep. Jason Kander, a Democrat, represents part of Jackson County (District 44) in the Missouri House of Representatives.

In addition to his legislative duties, Rep. Kander is an attorney with The Barnes Law Firm and also serves as a military intelligence officer in the Army National Guard. Previously, he was employed as a Political Science Instructor at the University of Missouri-Kansas City and as an associate with Spencer Fane Britt and Browne. Rep. Kander also has advised members of Congress on foreign policy issues and provided political commentary on local and national radio.

Rep. Kander enlisted in the Army National Guard with an infantry unit in 2002. He became an officer in the Army Reserve in 2005. Rep. Kander volunteered for deployment and served in Afghanistan from 2006 to 2007. Currently he serves as a platoon trainer with the Missouri Army National Guard’s 140th Regional Training Institute’s Officer Candidate School.

Rep. Kander is a member of the following organizations: Veterans of Foreign Wars; Committee for County Progress; Votevets.org – Senior Advisor; Kansas City Metropolitan Bar Association; Missouri Bar Association; Missouri Association of Trial Attorneys; Greater Kansas City Women’s Political Caucus; Coro Kansas City – Board of Directors. Rep. Kander attends New Reform Temple in Kansas City.

A 1999 graduate of Bishop Miege High School, Rep. Kander received a B.A. in Political Science from American University in 2002 and a J.D. from Georgetown Law School in 2005.

Representative Brian Nieves’ (r – waterboard ’em) bio:

Majority Whip. Born June 19, 1965. A 1983 graduate of Pacific HIgh School in Franklin County. He joined the U.S. Navy in 1984, and served 10 years as a Corpsman alongside Marines…A small business owner Rep. Nieves operates, Nieves Enterprises and Hwy 66 Auto Sales. He also serves as a substitute high school teacher and Zone Pastor of Living Bread Church. He is a business speaker, concentrating in the areas of professional development and team building. Elected to the House: 2002-2006. Republican.

Reprentative Denny Hoskins (r – noun, verb, CPA) bio:

Rep. Denny Hoskins, a Republican, represents part of Johnson County (District 121) including the towns of Centerview, Holden, Knob Noster and Warrensburg in the Missouri House of Representatives.

In addition to his legislative duties, Rep. Hoskins is a Certified Public Accountant who specializes in financial planning and governmental audits. Rep. Hoskins also served in the Missouri Army National Guard.

Rep. Hoskins is a member of the Warrensburg Rotary and the Missouri Society of Certified Public Accountants. He also is a graduate of the Johnson County CLIMB and Leadership Missouri programs.

A graduate of Fatima High School in Westphalia, Missouri, Rep. Hoskins received a bachelor’s degree in accounting from the University of Central Missouri in 1998….

“…I seem to have a little water on my face, I think somebody was trying to waterboard me a minute ago….”

“…the lesson that this long course in human wickedness had taught us-the lesson of the fearsome, word-and-thought-defying banality of evil…”

Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil

Like Dick Morris has any credibility?

Sarah Steelman (r – please, oh please, run, run!) has been pontificating via Twitter on things torture:

Hadcing dinner with Dick Morris tonight He is in StL for several events about 19 hours ago from mobile web

Dick is very insightful about political situation in DC He is on Greta tonight about 19 hours ago from mobile web

He will be talking about Pelosi’s changing positions. about 19 hours ago from mobile web

In studio with Dick about 19 hours ago from mobile web

He is on talking about how the Pelosi could be consumed by this about 18 hours ago from mobile web

Dixk says she should step down as Speaker about 18 hours ago from mobile web

Heh.

And the money quote, the pièce de résistance, the ne plus ultra of republican critical thinking?:

She should not get into a fight with the CIA when they say they are telling the truth about 18 hours ago from mobile web

Except they aren’t saying that. What is it about “…In the end, you and the Committee will have to determine whether this information is an accurate summary of what actually happened…” that Sarah Steelman doesn’t quite understand?

Oh that’s right, that’s always way too much to ask of right wingnut political hacks.

…or psychotic thug? Take your pick. Or choose both.

Representative Denny Hoskins (r – noun, verb, CPA) has been flippantly posting on torture via Twitter:

Other U.S. “torture” methods of global terrorists included putting a caterpillar in a dark cell with one of the terrorists…How scary! about 2 hours ago from web

Some U.S. military training includes being waterboarded to know how to deal with it if captured by the enemy…about 2 hours ago from web

Here’s something on the subject of torture from someone who just received a journalism award from The Sidney Hillman Foundation (you know, someone who actually knows how to do and does basic research):

Khalid Sheikh Mohammed Was Waterboarded 183 Times in One Month

By: emptywheel Saturday April 18, 2009 11:57 am

…The CIA wants you to believe waterboarding is effective. Yet somehow, it took them 183 applications of the waterboard in a one month period to get what they claimed was cooperation out of KSM.

That doesn’t sound very effective to me…

And there is the matter of the peremptory norms of international law (you, know, for civilized nations):

The United States, as a party to the International Military Tribunal for the Far East (Tokyo War Crimes Trials) in the aftermath of World War II, prosecuted individuals as war criminals who tortured prisoners by waterboarding them:

Changi Prison, October 1943

… The Japanese were trying to establish that there was a spy organization in Changi Prison which received and transmitted by radio telephony, which had established contacts in the town for the purpose of sabotage and [12937] stirring up of  anti-Japanese feeling, and which collected money from outside for this purpose. In fact, there was no organization, no radio transmission and no attempt to promote anti-Japanese activities outside the Camp…[12939]

…Usually interrogations started quietly and would continue as long as the inquisitors got the expected answers. If, for any reason, such answers were not forthcoming, physical violence was immediately…

…[12940] employed. The methods used were:

(1) Water Torture. There were two forms of water torture. In the first, the victim was tied or held down on his back and a cloth placed over his nose and mouth. Water was then poured on the cloth…

International Military Tribunal for the Far East – Proceedings, p. 12,936.

[emphasis added]

The witness saw Chinese, Malay and Indian prisoners tortured and stated that three Chinese died after undergoing water torture.

International Military Tribunal for the Far East – Proceedings, p. 12,959.

(5) The prisoner was blindfolded, then a large quantity of water slowly poured into his mouth and nostrils, so that the prisoner suffocated.

International Military Tribunal for the Far East – Proceedings, p. 12,982.

MR. JUSTICE MANSFIELD: These documents describe the torture of the witnesses by… who beat and kicked them and ordered them to be tortured by the water method.

International Military Tribunal for the Far East – Proceedings, p. 13,186.

When…did not succeed in getting anything out of me, he gave me the water test. ..I was tied to the bench with my hands cuffed on my back. At a certain moment my agony was such that I broke the handcuffs…

International Military Tribunal for the Far East – Proceedings, p. 13,684.

…Professor DE VRIES suffered the watertest 22 times during a period of 2 months, and his interrogation amounted to 500 hours in toto. Prosecution document 5750.

International Military Tribunal for the Far East – Proceedings, p. 13,686.

TORTURE

Various tortures were administered during interrogation, the main one being ‘Water Torture,’ which is done by laying a person flat on a bench with his head overhanging one end. A funnel is then placed in the mouth and water forced into the abdomen and the lungs. The torturer then jumps on the stomach of his victim, producing a drowning sensation.

International Military Tribunal for the Far East – Proceedings, p. 14,168.

The water treatment consisted of lashing a man down face up across the desk top.  A bath towel  is then so rolled as to form a circle around his nose and mouth, and a five-gallon can of water, which was generally with the vilest of human refuse and other filth, such as kerosene, was then put handy. The man was then [14182] questioned, and if he did not respond, the water was poured into the space made by the bath towel, forcing the prisoner either to swallow and…

…inhale the vile concoction or to strangle himself. This is kept up, questioning between doses, until the man is at a point of unconsciousness. Shortly before unconsciousness is reached, the man is frequently beaten across the belly with a small iron rod.. After consciousness has left, he is usually suspended by the heels from a tackle overhead and the water allowed to drain out of him. When he has sufficiently recuperated, the treatment is resumed.

International Military Tribunal for the Far East – Proceedings, p. 14,181.

I sure hope Denny Hoskins’ familiarity with the rules of accounting are better than his understanding of history, federal statutes, treaty obligations, and international law.

I weep for our people, our state, and our nation.

Former Vice President Dick Cheney:

Cheney Calls for Release of Memos Showing Results of Interrogation Efforts

“…I haven’t talked about it, but I know specifically of reports that I read, that I saw, that lay out what we learned through the interrogation process and what the consequences were for the country,” Cheney said. “I’ve now formally asked the CIA to take steps to declassify those memos so we can lay them out there and the American people have a chance to see what we obtained and what we learned and how good the intelligence was…”

Uh, if the right wingnuts have been complaining that the release of the torture authorization memos would hurt America, won’t the release of the “dubya administration ‘snuff porn'” memos do the same? Why does Dick Cheney hate America? Just asking.

The incomparable Digby:

Vice For Life

…Did someone forget to tell Dick that he has no authority anymore to formally or informally ask the CIA to do jack?

I don’t ever remember a former president, much less a former vice president, behaving like this after he’s out of office. Can’t he find some GOP hacks to do this for him? It’s embarrassing…

It isn’t easy being out of power and not being able to travel the world without fear of arrest because you habitually violated the peremptory norms of international law.

Some mornings, you just want to go back to bed and pull the covers over your head, cry yourself to sleep and when you wake up find that you are someone else.

That is how I feel this morning.  The last thing I struggled and worked hard to become and that I took pride in being has been undermined and debased, and the last vestiges of honor ripped away, thrown to the ground and trampled.

Over the last eight years, my entire life has been negated.  The intelligence community was co-opted.  The military was abused and broken.  The rule of law was ignored and the Constitution was abrogated.  And this morning, I learn that my profession – medicine – was complicit in torture.  

[M]edical professionals working for the C.I.A. monitored prisoners undergoing waterboarding, apparently to make sure they did not drown. Medical workers were also present when guards confined prisoners in small boxes, shackled their arms to the ceiling, kept them in frigid cells and slammed them repeatedly into walls, the report said.

Facilitating such practices, which the Red Cross described as torture, was a violation of medical ethics even if the medical workers’ intentions had been to prevent death or permanent injury, the report said. But it found that the medical professionals’ role was primarily to support the interrogators, not to protect the prisoners, and that the professionals had “condoned and participated in ill treatment.”

At times, according to the detainees’ accounts, medical workers “gave instructions to interrogators to continue, to adjust or to stop particular methods.”

The report (.pdf) does not state whether the medical personnel who participated were physicians or allied professionals or some combination of the two, but it is deeply disturbing.  As it depicts torture in graphic detail, it simultaneously paints a picture of abject banality toward the intentional infliction of suffering on human beings on the part of those whose professional credo is ostensibly to “first, do no harm.”  

I literally had to tamp down the gag reflex, starting on page 10, and I was howling with rage by page 12 when I read the passage about torture victims having their pulse-ox monitored as they were subjected to waterboarding.  

And when the details of medical involvement were laid out, starting on page 21, I vomited.  

Medical personnel have a place in detention facilities, but it is by definition an advocacy role.  Anything less is unconscionable, and the personnel who participated in the torture of detainees should all be stripped of their license and livelihood, and imprisoned for a long, long, long, long time.

And after those sentences are served, they should face a jury of their professional peers.  

Those of us who have been tarred with the brush used to paint those thugs should have some sort of say in their ultimate fate.

From the incomparable Glenn Greenwald:

…If our political leaders can’t be held accountable for their war crimes and other serious felonies in foreign countries or international tribunals, and must never be held accountable in the U.S. either (because to do so is to “pour acid into our democratic machinery”), then it means that American political officials (in contrast to most other leaders) are completely and explicitly exempt from, placed above, the rule of law…

Go. Read the whole thing.

Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950.

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

[emphasis added]

Evidently he was not interested in being distracted by “the global war on terror” before 2001.  

Statement by Senator Christopher Bond (R-Missouri)

Following is a statement from the Senate’s closed deliberations on the articles of impeachment against President Clinton, excerpts of which senators were allowed to publish in the Congressional Record for Friday, February 12, 1999.

On Friday, February 12, 1999, I voted to convict President William Jefferson Clinton on both counts of the Impeachment Articles brought by the United States House of Representatives charging that he committed perjury and obstruction of justice. My reasons follow….

…It is precisely in good times, with the President high in the polls, that it is incumbent upon the Senate to exercise very thoroughly and carefully the responsibility under the Constitution to make the difficult decision on whether the President has committed high-crimes and misdemeanors warranting his removal from office. If we are to have a government of laws and not of men and not of public opinion polls, then we must judge the President on the evidence presented to us. I believe that the acts that he committed constitute high-crimes and misdemeanors warranting his conviction…

[emphasis added]

What had been going in the world before that time?

It was Friday, February 26, 1993, and Middle Eastern terrorism had arrived on American soil-with a bang.

And immediately after?

Lessons From The USS Cole Bombing

It appears that global terrorism was an issue.

That was then, this is now:

EXCLUSIVE: Holder assures GOP on prosecution

Eli Lake

Wednesday, January 28, 2009

…Eric H. Holder Jr.’s confirmation as attorney general is speeding toward approval thanks in part to his private assurances to a key Republican senator that he does not intend to prosecute intelligence agency interrogators for their actions during the prior administration.

The assurances, reported by Sen. Christopher S. Bond, Missouri Republican, to The Washington Times on Wednesday, went beyond Mr. Holder’s earlier public testimony in which he said he could not prejudge his actions regarding cases he had not seen.

“I believe [Mr. Holder] will look forward to keep the nation safe and not look backwards to prosecute intelligence operators who were fighting terror and kept our country safe since 9/11,” Mr. Bond said in the interview…

[emphasis added]

What will the children think?

Others say a few things about the issue brought about by this sudden change in attitude from Kit Bond:

Kit Bond is Full of It

Holder Aide: We Made No Special Promises to Bond

Did Holder Promise No Prosecutions?

The definition of a “two-tiered justice system”

Recently there’s been a fair amount of discussion in academic terms around blogtopia (yes, skippy coined the phrase!) of the state of our public discourse, in particular about the role of our media.

The Overton Window is one way to describe the public’s perceptual state when it comes to political ideas. In short, if one posits radical ideas on the far right spectrum and you have the ability to drown out or overwhelm opposing views with propagandist noise (for instance, The Faux News Channel) and/or censorship, you can move the “window” for what is acceptable public policy in another direction. By doing so you also marginalize opposing views.

Audience Atomization Overcome labeling the processes of media gatekeeping, which blesses some views and marginalizes others in our public discourse, has been discussed by Tristero at Digby’s place (“The Problem”) and Bob Sommerby at The Daily Howler (“THIS JUST IN-FROM 1986! Jay Rosen defines the sphere of deviance-and leaves some key things out:”).

Critical thinking is supposed to come into the mix here somewhere. That’s a big problem with our media. Otherwise, why would the following be out there absent certain questions posed to the individual “working the refs”?:

Former Bush Speechwriter: CIA Torturers Are ‘American Heroes’

…THIESSEN: They’re not torturers. They’re heroes. … And the thought that we’re sitting here discussing whether these people should be prosecuted or investigated is just outrageous. These people are American heroes who saved lives and stopped the next Sept. 11….

Yup. the same guy: Currently unemployed, will write fiction on spec…

You would think that waterboarding which is torture would be discussed in our media as such. But no, they are too lazy to actually do a little research, process the information, and present it. Instead we get “enhanced interrogation” as a label thereby moving the “Overton Window”, defining the parameters of acceptable public discourse, and hiding or obscuring what others do in our names.

Here’s an simple test which might prove enlightening for all concerned. Let’s show the public a videotape of suspects being waterboarded, then we’ll ask the public if they think it’s torture. Oops, too late.  

That’s why we’re here. Our traditional media fails miserably in fulfilling the need to elevate our public discourse. That, and we’re working the “refs” – we believe with a modicum of critical thinking to boot.

…never buy a used car from a guy named “Slim”, and never get legal or political advice from a George W. Bush administration Attorney General:

Ex-AG Gonzales: ‘I Should Have Been More Engaged’

…”Lawyers often disagree about important legal issues,” he said.

He provided a word of caution to Obama’s attorney general nominee, Eric Holder, who last week testified that he believes that the interrogation practice of waterboarding – controlled drowning – is torture.

“One needs to be careful in making a blanket pronouncement like that,” Gonzales said, suggesting that it might affect the “morale and dedication” of intelligence officials and lawyers who are attempting to make cases against terrorism suspects.

He said people he knows at the CIA have told him that agents there “no longer have any interest in doing anything controversial.” And that, Gonzales asserted, means they “won’t be doing what they need to be doing” to protect the country…

Idiot.

A Small Clique Of Legal Extremists…

How the Press, the Pentagon, and Even Human Rights Groups Sold Us Army Field Manual that Tortures

by Valtin at Docudharma, Sat Jan 24, 2009 at 23:12:04 PST

If you wish to repost this essay you can download a .txt file of the html here (right click and save). Permission granted.
Docudharma Tag: petition for a special prosecutor

Originally published at AlterNet

A January 17 New York Times editorial noted that Attorney General designate Eric Holder testified at his nomination hearings that when it came to overhauling the nation’s interrogation rules for both the military and the CIA, the Army Field Manual represented “a good start.” The editorial noted the vagueness of Holder’s statement. Left unsaid was the question, if the AFM is only a “good start,” what comes next?

The Times editorial writer never bothered to mention the fact that three years earlier, a different New York Times article (12/14/2005) introduced a new controversy regarding the rewrite of the Army Field Manual. The rewrite was inspired by a proposal by Senator John McCain to limit U.S. military and CIA interrogation methods to those in the Army Field Manual. (McCain would later allow an exception for the CIA.)

According to the Times article, a new set of classified procedures proposed for the manual was “was pushing the limits on legal interrogation.” Anonymous military sources called the procedures “a back-door effort” to undermine McCain’s efforts at the time to change U.S. abusive interrogation techniques, and stop the torture.

A Forgotten Controversy

Over the next six months or so, a number of articles in the New York Times, the Washington Post, and the L.A. Times described the course of the controversy. By mid-June 2006, the NYT was reporting that, under pressure from unnamed senior generals and members of Congress (including McCain, and Senators Warner and Graham), the Pentagon was rethinking its plan to have a classified annex to the AFM, which would include a different set of interrogation rules for “unlawful combatants,” like the detainees at Guantanamo. Included in the discussion about these classified procedures were, reportedly, members of the State Department and various human rights organizations.

According to an article in the L.A. Times, this latest fight over the classified procedures went back at least to mid-May 2006. The manual itself had been written at the U.S. Army Intelligence Center at Ft. Huachuca, Arizona, roughly a year earlier, and then sent to the Pentagon for further evalution. Secretary of Defense Donald Rumsfeld’s right-hand man, Stephen Cambone, was put in charge of its final draft. According the L.A. Times article, members of Congress were “keen to avoid a public fight with the Pentagon.” The announcement that the controversial and still unknown procedures might not be included in the manual was seen as a success by human rights groups.

Yet the proverbial chickens never hatched, and by early September 2006 the new Army Field Manual was finally released. The section on special interrogation procedures for “unlawful combatants” was included as a special appendix (Appendix M), and published in unclassified format. According to a L.A. Times story on September 8, Cambone was crowing that the new Army Field Manual instructions would give interrogators “what they need to do the job.” The article noted:

The new manual includes one restricted technique that will only be used on so-called unlawful combatants – such as Al Qaeda suspects – not traditional prisoners of war.

That technique, called “separation,” involves segregating a detainee from other prisoners. Military officials said separation was not the equivalent of solitary confinement and was consistent with Geneva Convention protections.

As for the proposed secrecy surrounding the new techniques, the Pentagon had decided it couldn’t keep them secret forever. Senator Warner was also on record as against any classified annex to the manual.

Not long ago, I wrote about what was included in Appendix M, which purports to introduce the single technique of “separation.” In fact, the Appendix M includes instructions regarding solitary confinement, sleep deprivation, sensory deprivation, and, in combination with other procedures included in the Army Field Manual, amounted to a re-introduction of the psychological torture techniques practiced at Guantanamo, and taught by Survival, Evasion, Resistance, and Escape, or SERE psychologists and other personnel at the Cuban base and elsewhere.

The rewrite of the Army Field Manual included other seemingly minor changes. It introduced dubious procedures, such as the “False Flag” technique, wherein interrogators could pretend they were from another country. It also redefined the meaning of “Fear Up,” a procedure meant to exploit a prisoner’s existing fears under imprisonment. Now, interrogators could create “new” fears. The AFM rewrite was a masterpiece of subterfuge and double talk, which could only have been issued from the offices of Rumsfeld and Cambone.

One would think this turnaround of the Pentagon’s position regarding a removal of these controversial procedures would have been a matter of some note. But there was no protest from Congress, no mention of the past controversy in the press, and only vague comments at first and then acceptance by human rights organizations like Amnesty International and Human Rights Watch. Only Physicians for Human Rights protested the inclusion of the techniques listed in Appendix M. For the rest… silence.

DoD Rolls Out the New Model

On September 6, 2006, a news briefing was held by the Department of Defense, as part of the unveiling of the new Army Field Manual, in conjunction with the then-new Defense Department Directive for Detainee Programs (DoD Directive 2310.01E). Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson and Army Deputy Chief of Staff for Intelligence (G-2) Lt. Gen. John Kimmons were the DoD presenters.

Much of the belief that the AFM provides an improvement over previous policies of the Department of Defense is likely due to a confusion between the two documents introduced that summer of 2006, the new Detainee Program Directive and the new Army Field Manual.

DoD Directive 2310.10E made a number of changes in regards to detainee operations and management. It made clear that “All persons subject to this Directive shall observe the requirements of the law of war, and shall apply, without regard to a detainee’s legal status, at a minimum the standards articulated in Common Article 3 to the Geneva Conventions of 1949…” The same type of language appears in the text of the Army Field Manual itself.

During the press briefing on September 6, and a different one
the next day for the foreign press, reporters were not so easily fooled.

One unnamed reporter at the DoD briefing challenged Lt. Gen. Kimmons on the “single standard” issue:

   Q General, why was the decision made to keep these categories — the separate categories of detainees? You have traditional prisoners of war and then the unlawful enemy combatants. Why not treat all detainees under U.S. military custody the exact same way?

Kimmons’s answer quickly veered into unacceptable territory, and Stimson had to jump in to clarify, as this excerpt demonstrates (emphasis added):

   GEN. KIMMONS: Well, actually, the distinction is in Geneva through the Geneva Convention, which describes the criteria that prisoner — that lawful combatants, such as enemy prisoners of war — which attributes they possess — wearing a uniform, fighting for a government, bearing your arms openly and so on and so forth. And it’s all spelled out fairly precisely inside Geneva.

   Geneva also makes clear that traditional, unlawful combatants such as in the — 50 years ago, we would have talked about spies and saboteurs, but also now applies to this new category of unlawful — or new type of unlawful combatant, terrorists, al Qaeda, Taliban.

   They clearly don’t meet the criteria for prisoner of war status, lawful combatant status, and so they’re not entitled to the — therefore to the extra protections and privileges which Geneva affords.

But Stimson’s clarification was not very helpful. In fact, if a prisoner is judged not a “lawful combatant”, then he or she immediately becomes covered by Geneva IV, the “Civilian Convention,” which protects anyone “who, at a given moment and in any manner whatsoever find themselves” held prisoner. According to the International Red Cross Commentary on the Geneva Conventions:

   Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third [POW] Convention, [or] a civilian covered by the Fourth Convention…. There is no intermediate status; nobody in enemy hands can fall outside the law.

Separation and Sensory Deprivation

One questioner took on the topic of the “Separation” technique. Wasn’t it the same as solitary confinement, and wasn’t solitary confinement “banned by Common Article 3 in the affront to human dignity, other provisions? “Are you confident,” a reporter asked, “that separation is permitted under Common Article 3?”

The Deputy Assistant Secretary of Defense for Detainee Affairs responded by denying that separation amounted to solitary confinement, even though the AFM describes the technique as, among other things “physical separation” “limited to 30 days of initial duration.” Extensions for such physical separation must be reviewed and approved the General Officer or Flag Officer who initially approved the original “separation.”

Kimmons’ reply was even more disingenuous:

We have always segregated enemy combatants on the battlefield at the point of capture and beyond, to keep them silent, segregate the officers from the enlisted, the men from the women, and so forth. That’s traditional; it goes back to World War II and beyond.

So, is “separation” a matter of segregating prisoners, or what? In the Army Field Manual itself, one gets that same kind of double talk. At first it is presented thus:

The purpose of separation is to deny the detainee the opportunity to communicate with other detainees in order to keep him from learning counter-resistance techniques or gathering new information to support a cover story; decreasing the detainee’s resistance to interrogation.

This description sounds a lot like segregation for security purposes, although there is that phrase “decreasing the detainee’s resistance.” A page or so later, however, we find the following (emphasis added):

The use of separation should not be confused with the detainee-handling techniques approved in Appendix D [Guide for Handling Detainees]. Specifically, the use of segregation during prisoner handling (Search, Silence, Segregate, Speed, Safeguard, and Tag [5 S’s and a T]) should not be confused with the use of separation as a restricted interrogation technique.

Furthermore, we learn that “separation” requires an interrogation plan, and medical and legal review, as well, of course, as “physical separation.” If this is not solitary confinement for the purposes of breaking a prisoner down for interrogation, then the English language has lost all purpose in explaining things.

Another line of questioning took on the AFM’s contention that it banned sensory deprivation. The entire exchange at the September 6 hearing is worth reproducing here. It represents, among other things, the most thorough line of inquiry I have seen by any reporter in quite some time. The following quote contains added emphases.

    Q General, as an expert in interrogations, do you believe that sensory deprivation was abusive, or did it ever prove to be helpful in interrogation?

   GEN. KIMMONS: Sensory deprivation is abusive and it’s prohibited in this Field Manual, and it’s absolutely counterproductive, in my understanding of what we have used productively. Sensory deprivation, just to be clear — and we define it in the Field Manual, but basically, it comes down to the almost complete deprivation of all sensory stimuli, light, noise, and so forth, and to the point where it can have an adverse mental, psychological effect on a — disorienting effect on a detainee.

   Q So could there be deprivation of light alone for extended periods of time, as opposed to complete sensory deprivation?

   GEN. KIMMONS: I think the total loss of an external stimulus, such as deprivation of light, would not fit what we have described here as — for example, if you’re hinting about separation, separation does not involve the darkness or lack of that type of sensory stimulation.

   Q That wasn’t the question, though. Would sensory — would the deprivation of light alone be permitted under the current manual, as opposed — because you described sensory deprivation as total deprivation —

   GEN. KIMMONS: That’s correction.

   Q — of all senses. So deprivation of light alone for extended periods would be permitted?

   GEN. KIMMONS: I don’t think the Field Manual explicitly addresses it.

   It does not make it prohibited. And it would have to be weighed in the context of the overall environment. If it was at nighttime during sleep hours, then it would make personal sense to turn the lights off.

   Q You know what I’m talking about. I’m trying to get at — because you said specifically total sensory deprivation — so deprivation of any one sense might be permitted. Like light, for example. They could be kept in the dark for extended periods of time beyond the usual nighttime hours.

This is really too specific and challenging for the DoD briefers, and they turn on their double-talk machine:

   MR. STIMSON: Jim, questions like this are good questions to ask. And what’s important to remember is that interrogation plans are put together for a reason so that not just one person can decide what he or she wants to do and then run off and do it. They’re vetted. It’s laid
out how they’re vetted. General Kimmons could go into that in exhaustive detail. Typically, there would be a JAG, as I understand it, General Kimmons —

   GEN. KIMMONS: That’s correct.

   MR. STIMSON: — that would have to review that. It goes up through various chains of command. And so, you know, types of questions like this would have to be asked and then vetted through that process.

Burying the Story

With all the hard questioning by the press, you’d think the issues would have been aired in the media in the days and weeks following the introduction of the Army Field Manual. As should be evident by now, that’s not what happened.

Here’s how the L.A. Times covered it (9/6/06), getting the story exactly backwards (emphasis added):

   Bowing to critics of its tough interrogation policies, the Pentagon is issuing a new Army field manual that provides Geneva Convention protections for all detainees and eliminates a secret list of interrogation tactics.

   The manual, set for release today, also reverses an earlier decision to maintain two interrogation standards – one for traditional prisoners of war and another for “unlawful combatants” captured during a conflict but not affiliated with a nation’s military force.

There is no mention of Appendix M or any controversy over techniques. Jumana Musa, an “advocacy director for Amnesty International, is quoted as noting, “”If the new field manual embraces the Geneva Convention, it is an important return to the rule of law.'”

The 9/7/06 article in the Washington Post was, if anything, even more laudatory of the new AFM:

   Pentagon officials yesterday repudiated the harsh interrogation tactics adopted since the Sept. 11, 2001, terrorist attacks, specifically forbidding U.S. troops from using forced nudity, hooding, military dogs and waterboarding to elicit information from detainees captured in ongoing wars.

   The Defense Department simultaneously embraced international humane treatment standards for all detainees in U.S. military custody, the first time there has been a uniform standard for both enemy prisoners of war and the so-called unlawful combatants linked to al-Qaeda, the Taliban and other terrorist organizations.

The article falsely claims the AFM bans manipulation of sleep patterns. Regarding any controversy, the article explains:

   Three expanded techniques — good cop, bad cop; pretending to be an official from another country; and detention in a separate cell from others — are allowed but require approval from senior officers. Officials originally considered keeping those three techniques classified but decided to make them public for the sake of full transparency.

The Post article also briefly mentions the generally positive response of human rights groups:

   “This is the Pentagon coming full circle,” said Tom Malinowski, Washington advocacy director for Human Rights Watch. “This is very strong guidance.”

As for the human rights organizations, Amnesty International later essentially signed off on the AFM. In an article from the Winter 2007 issue of Amnesty International Magazine, Jumana Musa, quoted in the L.A. Times article above, had this to say about the new AFM:

   AIUSA also worked with U.S. representatives and senators to introduce legislation to create a single, transparent standard for interrogations and to limit the CIA to approved interrogation techniques outlined in the Army Field Manual.

In a telephone interview for this article, Mr. Malinowski said he supported using the Army Field Manual as a replacement for the CIA “enhanced interrogation techniques,” and described the question of abuse in Appendix M as not entirely clear. The language in Appendix M was “ambiguous,” and open to criticism due to a “lack of clarity.” He maintained, however, that using the current Army Field Manual as a model was merely a beginning, and that a new overhaul of interrogation techniques was on the agenda.

A call made to Amnesty International’s press contact regarding this issue, and an e-mail sent to Jumana Musa, were both unreturned.

Conclusion

Two conclusions can be drawn from the above examination of the “selling” of the Army Field Manual to the American public in the late summer of 2006 and beyond. One is that reporters on the beat were very aware of the origins and implications of the issues surrounding Geneva and the AFM, and the controversies surrounding the use of isolation and other techniques under the rubric of “Separation.” The extremely muted or non-existent discussion in the mainstream press of these issues after the AFM was introduced means that a decision to suppress these issues was made at an editorial level, and were not the result of laziness or dilatory reporting on behalf of reporters.

Secondly, the role of some human rights organizations in promoting the new Army Field Manual — in particular, the actions of Amnesty International and Human Rights Watch — are curious, to say the least. Press reports and the interview with Malinowski show that inclusion of certain human rights organizations in the vetting of the AFM started at the very beginning. We may not be able to find out what went on in the editorial offices of the nation’s top newspapers, but we should know more about the discussions within the human rights organizations on how they advised, or were fooled, by talks with Bush administration and Pentagon personnel.

Meanwhile, other human rights organizations, such as the Nobel Prize-winning Physicians for Human Rights, have criticized the language and techniques described in Appendix M of the Army Field Manual, and called for rescission of the offending text. In a letter to Secretary of Defense Robert Gates in May 2007, Leonard S. Rubenstein, Executive Director of PHR, and retired Brigadier General Stephen N. Xenakis, MD, former Commanding General of the Southeast Regional U.S. Army Medical Command, wrote:

The new Army Field Manual on human intelligence gathering… explicitly prohibits several SERE-based techniques, yet Appendix M of the manual explicitly permits what amounts to isolation, along with sleep and sensory deprivation. The manual is silent on a number of other SERE-based methods, creating ambiguity and doubt over their place in interrogation doctrine….

   PHR, therefore, respectfully urges you to take the following actions:

   1. Fully implement the OIG’s recommendation to “preclude the use of Survival, Evasion, Resistance, and Escape physical and psychological coercion techniques” in all interrogations. (Id, pp. 29-30.) This includes rescission of Appendix M of the new Army Field Manual and specific prohibition, by name, of each of the known SERE-based methods and their equivalents.

It seems likely that the Army Field Manual, whether by executive order (most likely) or by legislation, will become the new “single standard” for U.S. interrogation. Press reports hint that the Obama administration may yet allow a loophole for CIA interrogators. I don’t know how that will sit with the many military lawyers and officers who have been instrumental in opposing Bush/Rumsfeld’s torture policies from the beginning. I’m th
inking of people like Alberto Mora and Antonio Taguba, or the new nominee for DoD General Counsel, Jeh Charles Johnson, who apparently intends to seriously change the policies set by his predecessor, Jim Haynes.

In any case, the full history and controversy behind torture and U.S. interrogation policy deserves a full airing. What happened, for instance, between June and September 2006, allowing for Pentagon acceptance of the Appendix M abusive procedures? When it comes to the implementation of a host of torture and cruel, inhumane interrogation techniques by the U.S. government, both an investigation and prosecutions are needed.

It will be a challenge for our society to bring out the full story, while also bringing to justice those individuals who broke both domestic law and international treaty. We will need both investigations and prosecutions in order settle scores with the past, to understand where we stand now, and what we need to change to move forward.

Also posted at Invictus

President Obama and Attorney General Eric Holder must appoint a Special Prosecutor to conduct a formal investigation without political considerations and prosecute any and all government officials who have participated in War Crimes.