Torture

Nance, Kleinman, and Waterboarding: The Remix

Spencer Ackerman | November 9, 2007, 3:52PM

Several readers lamented that yesterday's House Judiciary committee hearing on torture with former Navy instructor Malcolm Nance and Colonel Steve Kleinman wasn't on C-Span. Well, you didn't think that would stop TPM, did you?

Thanks to TPM's video ace, Ben Craw, we've distilled the extensive hearing into its dramatic, high-octane essence: Nance's intense opening statement, and a key exchange between Kleinman and Rep. Trent Franks (R-AZ). Don't call him pro-torture!

Check it out:

Torture

House Dems Introduce Anti-Torture Bill

Spencer Ackerman | November 8, 2007, 3:32PM

On the heels of today's torture hearings in a House Judiciary subcommittee, Rep. Jerrold Nadler (D-NY), the subcommittee chairman, and Rep. William Delahunt (D-MA) have introduced a bill to force all American interrogators to conform to the Geneva Conventions-compliant standards of the Army Field Manual on Interrogation (pdf). That would mean no waterboarding, no "cold cells," no stress positions -- none of that stuff that Malcolm Nance and Steve Kleinman testified doesn't work anyway.

Under current law -- Sen. John McCain's (R-AZ) 2005 Detainee Treatment Act -- torture is (once again) prohibited, but the law's provisions don't apply outside the U.S. military. The CIA still, in principle, can employ "enhanced interrogation" techniques, waterboarding being among the most infamous. In September, CIA Director Mike Hayden resisted bringing CIA interrogations in line with the Army Field Manual, telling the Council on Foreign Relations, "I don't know of anyone who has looked at the Army Field Manual who could make the claim that what's contained in there exhausts the universe of lawful interrogation techniques consistent with the Geneva Convention." Michael Mukasey echoed that sentiment during his confirmation hearings.

The Nadler-Delahunt bill, called the American Anti-Torture Act of 2007, would indeed make the field manual exhaustive of that "universe of lawful interrogation techniques."

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Torture

Veteran Interrogator: Torture Ties My Hands

Spencer Ackerman | November 8, 2007, 1:18PM

Rep.Trent Franks (R-AZ) won't let it go. During today's House Judiciary Committee hearing on torture, he asked Colonel Steve Kleinman whether it would be irresponsible -- as Alan Dershowitz recently argued in an op-ed -- not to torture someone if all else fails in an interrogation. Kleinman replied that Dershowitz "clouds the issue" and his op-ed "reflects a lack of understanding of the intelligence process." But then he offered a brief explanation of that process that sheds light on why torture is counterproductive for a professional interrogator, leaving aside questions of morality and law.

It's not just what a subject says in an interrogation that an interrogator needs to watch for clues, Kleinman said. The way in which he expresses himself is significant: does the subject fidget? Does he shift in his seat? Does he gesture, or suddenly stop gesturing? All of these non-verbal clues -- "clusters, groupings of behaviors," Kleinman called them -- provide interrogators with valuable information to observe what a detainee is like when he's lying, when he's being uncooperative, and when he's being truthful, or a combination of the three.

But if a detainee has his hands tied, or if a detainee shivers because a room is chilled, then "I don't know whether he's shivering because the room is cold or because my questions are penetrating," Kleinman said. That degree of abuse "takes away a lot of my tools." It's one of the clearest explanations in the public record about what torture costs professional interrogators in terms of actionable intelligence, as the debate is so often set up as what a lack of torture ends up costing national security.

Franks didn't seem so satisfied, but told both Kleinman and Nance that he had the "deepest respect for your motivations, regardless of any disagreements with you." Looks like Nance's warnings yesterday were taken to heart. The hearing ended free of any swiftboating.

Torture

Nance: U.S. Troops Now 'Guaranteed' To Be Tortured in Captivity

Spencer Ackerman | November 8, 2007, 12:31PM

Rep. Artur Davis (D-AL) asked during today's hearing whether even the impression that the U.S. tortures makes it more likely that an adversary in a future conflict -- he used the Iranians as an example -- would torture captured U.S. or allied troops.

Former Navy instructor Malcolm Nance said he considered it a "guarantee" that other nations now have "a legal standard to subject American soldiers to enhanced interrogations." U.S. Air Force Reserve Colonel Steve Kleinman said he "agree[s] entirely."

Torture

Veteran Interrogator: You Don't Need to Torture Even in 'Ticking Bomb' Case

Spencer Ackerman | November 8, 2007, 11:34AM

During today's hearing in the House Judiciary Committee, Rep. Trent Franks (R-AZ), fresh off an intellectually stimulating comparison of torture to abortion (he questioned why the committee isn't concerned about abortion, even though some abortion techniques torture the woman), asked about the so-called "ticking" bomb case -- that is, an uncooperative detainee has surefire knowledge of an imminent attack. Should you torture him then? Franks himself said several times this morning that he's against torture, by the way.

Now, the ticking-bomb case -- depending on where you sit on the torture question -- is either the hardest test of someone's sense of balance between human rights and national security or a rhetorical trap designed to box opponents of torture into saying that it's better for Sheboygan to be nuked than someone be waterboarded. But the question was handled by U.S. Air Force Reserve Colonel Steve Kleinman, a longtime military interrogator and intelligence officer. He said that even in the ticking bomb case, torture would be the wrong call. "'I'd say it'd be unneccesary to conduct our affairs outside the boundaries," Kleinman replied. His experience "proves the legal and moral concerns to be almost immaterial, because what we'd need to do to be operationally effective" wouldn't involve torture.

Which makes sense, considering that U.S.'s SERE instructors teach their students that torture just "Produces Unreliable Information."

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Torture

Pentagon Bars Anti-Torture Marine From Testifying

Spencer Ackerman | November 8, 2007, 11:04AM

There's an empty chair at Malcolm Nance's hearing before a subcommittee of the House Judiciary Committee on torture this morning. That chair was supposed to be occupied by Marine Lt. Colonel Stuart Couch. In 2004, Couch, a then a prosecutor, refused to bring charges against a 9/11-linked detainee at Guantanamo Bay, Mohamedou Ould Slahi, after determining that the basis for the charges -- Slahi's confession -- were yielded by torture, as the Wall Street Journal reported earlier this year.

The subcommittee wanted to hear about Couch's experiences. But the Pentagon refused to let him testify. The Journal:

Asked last week to appear before the panel, Col. Couch says he informed his superiors and that none had any objection.

Yesterday, however, he was advised by email that the Pentagon general counsel, William J. Haynes II, "has determined that as a sitting judge and former prosecutor, it is improper for you to testify about matters still pending in the military court system, and you are not to appear before the Committee to testify tomorrow." Mr. Haynes is a Bush appointee who has overseen the legal aspects of the Pentagon's detention and interrogation policies since Sept. 11, 2001. The email was reviewed by The Wall Street Journal.

Subcommittee chairman Rep. Jerrold Nadler (D-NY) commented, "He was never expected to testify on behalf of, or as a representative of, the Defense Department. Indeed, Mr. Couch has already spoken extensively about this issue publicly. It is outrageous that Congress is yet again having its oversight role undermined by being denied access to an individual that could give expert testimony on the critical issue of torture."

Here's what happened to Slehi that shocked Couch's conscience:

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Torture

Leahy to White House: Ahem, Torture Docs Please

Paul Kiel | November 8, 2007, 10:47AM

Senate Judiciary Chairman Patrick Leahy's (D-VT) correspondence with the White House tends to be something of a one-way affair. But he, at least, has been a faithful pen pal.

Today, again, he wrote White House counsel Fred Fielding to request documents relating to the administration's torture and interrogation policies (see below). He hasn't received a reply to the one he wrote two weeks ago, but he's since learned that the administration is hiding a third Justice Department memo outlining interrogation policies, and now he wants that, in addition to the other two he doesn't have. And Fielding, don't try that old trick of handing over already public documents as if they were actually something new. Fool me once....

Congratulations are in order: Leahy and the White House will soon celebrate the one year anniversary of Leahy's November 15, 2006, request for “any and all Department of Justice directives, memoranda, and/or guidance . . . regarding CIA detention and/or interrogation methods.” So a Happy Torture Policy Stonewalling Day to Pat and everyone in the Bush Administration!

Leahy's letter is below.

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Torture

Ex-Navy Instructor Promises to Hit Back If Attacked on Torture

Spencer Ackerman | November 7, 2007, 2:11PM

Malcolm Nance, good-spirited though he is, is a pugnacious guy. Nearly 20 years' service in the Navy, including time instructing would-be Navy SEALs how to resist and survive torture if captured. Intelligence and counterterrorism expert. Several years in Iraq as a security contractor. So don't expect him to suffer in silence if his credibility is attacked during testimony to a House panel tomorrow about his personal experiences with waterboarding.

"God forbid if there's even the slightest hint about my credentials," Nance says over tea in a Washington coffee shop. "You will see a spectacle on C-Span. I'll impugn [my attacker's] credibility in public. Let's see him give 20 years in the military, give up his family life, and then he can come talk. If not, shut the hell up."

Nance has become newly controversial for writing on the counterinsurgency/counterterrorism blog Small Wars Journal about his experiences teaching waterboarding for the Navy's Survival, Evasion, Resistance, Escape (SERE) program. He's been subjected to the procedure personally, and unequivocally called it torture in a much-discussed post. Subsequently, a House Judiciary subcommittee contacted him during a business trip in the Middle East and asked him to testify at a hearing on so-called "enhanced interrogation" techniques that kicks off tomorrow morning.

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Iraq Contractors

Judge Allows Contractor Torture Suit to Advance

Spencer Ackerman | November 6, 2007, 6:14PM

We reported recently that the Center for Constitutional Rights is representing the families of the Iraqi victims of Blackwater's Nisour Square shootings in a lawsuit filed in U.S. court. That's one of only two lawsuits -- both filed by CCR, incidentally -- brought against U.S. contractors for potential crimes committed in Iraq. The other, brought against Titan Corporation and CACI in 2004 for their roles in prisoner abuse at Abu Ghraib, has been held up for years over legal questions over whether the victims have the right to sue. CACI provided an interrogator to the facility at Abu Ghraib, Steven Stefanowicz -- who "clearly knew that his instructions equated to physical abuse," according to the Taguba report -- while Titan provided two translators, John Israel and Adel Nakhla.

Well, today, the dam broke. The CACI suit will advance. The judge dismissed the suit against Titan, however, "because the translators performed their duties under the direct command and under the exclusive operational control of military personnel."

Torture

ACLU Uncovers a Third Bradbury Torture Memo from 2005

Spencer Ackerman | November 6, 2007, 4:36PM

Just in time for Michael Mukasey's impending Senate vote to become attorney general, the ACLU has discovered that one of his would-be underlings, Steven Bradbury of the Office of Legal Counsel, penned three memoranda in 2005 on the use of "enhanced interrogation techniques" by the CIA. The discovery raises the possibility that the Justice Department has penned other as-yet-unknown torture memos since 2005.

Two of those memoranda were first revealed by The New York Times in early October. That story struck the ACLU as outrageous -- not just on the substantive merits, but because on January 31, 2005, the ACLU filed a Freedom of Information Act request with the OLC and other federal agencies demanding documentation on the treatment of detainees. Yet even though the ACLU had received documents from the government dated after the OLC memos described in the Times, it still had to read about material clearly relevant to its FOIA request in the paper.

ACLU attorney Jameel Jaffer says Justice Department officials told him that the date the organization filed its FOIA request represented a cut-off date for material -- a bizarre argument, given that it's already received documentation dating after the January 31, 2005 filing -- and as a result, Jaffer asked Judge Alvin K. Hellerstein of the Southern District Court of New York to adjudicate late last month. And in response to the ACLU, the government revealed this piece of tantalizing information:

OLC has reviewed its opinions from that time frame and has determined that there were in fact three opinions issued to CIA relating to the interrogation of detainees in CIA custody … Two of the opinions were issued on May 10, 2005 … The third was issued on May 30, 2005 ... OLC has not located any legal opinions issued to CIA from January 31, 2005 through May 9, 2005 that relate to the interrogation of detainees in CIA custody.

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Torture

Embattled CIA IG To Meet with House Intel Panel

Spencer Ackerman | November 6, 2007, 1:52PM

It's been awhile since we checked in on the plight of John Helgerson, the inspector-general of the CIA who's under "management review" by CIA Director Michael Hayden following Helgerson's investigation of CIA war-on-terror programs. Not much has happened in the case since Hayden defended his decision to investigate the straight-shooter IG to Charlie Rose late last month.

But today the House intelligence committee announced that the full panel is going to meet in closed session with Helgerson tomorrow at 2 p.m. Statutorily, the IG has a direct line to the congressional intelligence committees -- the better to investigate waste, fraud, abuse and mismanagement -- but it's not clear how far that can go in protecting Helgerson's job. Stay tuned.

Torture

Frontline Looks at Extraordinary Rendition

Spencer Ackerman | November 6, 2007, 11:02AM

For sheer audacity, nothing beats the sight of a spokesman for the Egyptian interior ministry describing someone else's experience of being kidnapped, blindfolded, taken to a far-away prison and tortured this way: "Some people love to attract the limelight to give themselves more importance than necessary." That display of official cynicism is just one of the treats Frontline has in store for tonight's exploration of the anti-terrorist kidnapping practice known as extraordinary rendition.

The rendition subject the Egyptian interior spokesman described is Abu Omar, a hardline Egyptian-born cleric who was kidnapped by the Italians in coordination with the CIA in 2003 before being rendered to Egypt and tortured. Abu Omar's rendition was superficially a success -- the snatch worked; and he was indeed tortured -- but Italian prosecutors were able to learn the identities of the CIA operatives behind the rendition and have put them on trial in absentia.

Interestingly, Abu Omar gives a kind of non-denial denial when asked by Frontline if he's a terrorist, which crystallizes the issue at its most complex: is it acceptable to torture people who intend to carry out atrocities?

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Must Read

Today's Must Read

Paul Kiel | November 6, 2007, 9:42AM

So now that the country has undergone its collective tutorial on the torture technique waterboarding (see here, here, and here if you missed class), Congress is ready to begin voting on the nomination of Michael Mukasey for attorney general.

It's starts this morning with the Senate Judiciary Committee, where Sens. Chuck Schumer (D-NY) and Dianne Feinstein (D-CA), who both reason that the Bush Administration is not likely to offer a better nominee, are expected to provide the key swing votes to put him through.

And then it's on to the full Senate. As we've said before, that's always been a safer vote for Mukasey, because of the likely support of moderates. But that ease is by design, Roll Call reports (sub. req.), because Majority Leader Harry Reid (D-NV) decided to play the nomination hands off. Reid himself made it easier on the troubled committee Dems but refraining from announcing his position on Mukasey (which he told The Washington Post was not "much of a secret"), and the circumstances of the vote will diminish any likely further controversy:

“He’s been encouraging people to have a full-throated debate, but ... he’s actually been discouraging people from filibustering or slowing down the nomination,” one knowledgeable Senate Democratic source said of Reid.

So it looks like there will be plenty of bluster aimed at satisfying civil liberties groups who are outraged that Mukasey won’t unequivocally say that he considers simulated drowning, or waterboarding, torture.

But in the end, a Democratic-led filibuster of the nominee is unlikely, given Reid’s hands-off approach to the nomination. Even if a few Democrats decided to erect a 60-vote threshold for Mukasey’s nomination, it’s not hard to imagine that 11 or more Democrats would vote with the chamber’s 49 Republicans to beat back the filibuster....

“With these kinds of nominations, it’s very hard to highlight a party position,” Reid spokesman Jim Manley said. He added, “This gets to the core of what the Senate is all about — the traditional role of advice and consent. ... In the end, it’s up to each individual Senator to decide how they’re going to vote on these nominees.”

But not to worry: there will be a kind of consolation prize for all those outraged civil liberties groups. Sen. Ted Kennedy (D-MA) will offer a bill that would specifically outlaw waterboarding -- so that even if we have an attorney general who hedges on whether it's torture, his hands would be tied.

Torture

Lawyers Want Senate To Hear About Ex-Ghost Detainee Before Mukasey Vote

Spencer Ackerman | November 5, 2007, 3:42PM

There isn't much time before tomorrow's vote on attorney general-designee and torture agnostic Michael Mukasey. But lawyers from the only former CIA "ghost detainee" still in U.S. custody and with access to legal counsel want the Senate to know what the consequences of a torture regimen are before they give Mukasey their stamp of approval. In a letter written November 1st, they requested a meeting with key Senators, but the letter was only cleared today for release by U.S. authorities.

Two lawyers for the Center for Constitutional Rights, Gita Gutierrez and J. Wells Dixon, recently returned from a two-week meeting with their client, Majid Khan, at Guantanamo Bay, where he's been detained since last September. Before he was taken to Guantanamo, Khan spent three years in an off-the-books detention facility run by or in cooperation with the CIA. Neither the Red Cross nor anyone outside a select few U.S. national security officials knew Khan's whereabouts. Since President Bush's 2006 decision to transfer 14 so-called "black site" detainees to Guantanamo, Khan is the first ghost detainee to meet with an attorney.

Gutierrez and Dixon, however, are subject to tight restriction over what they can say publicly about their client. They want to call attention to Khan's treatment from 2003 to 2006 when, for at least some portion of that time, he and other detainees in CIA custody were -- according to the president -- subject to the "enhanced interrogation procedures" that the Bush administration approved in mid-March 2002. While it's not clear what interrogation methods Khan endured, among those "enhanced" techniques was waterboarding -- the inducement or simulation of drowning that Mukasey won't say is torture.

But all of the notes that Gutierrez and Dixon took from their conversations with Khan are under scrutiny by Justice Department and CIA officials to ensure that classified information isn't revealed. Any information related to Khan that might be released in court filings or anywhere else by CCR goes to a CIA information officer for review. Gutierrez and Dixon experienced difficulty even letting Senators know that they had information about Khan that they wanted to share with the Senate.

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Must Read

Today's Must Read

Paul Kiel | November 2, 2007, 9:51AM

No one will ever say "poor Chuck Schumer."

But Chuck is in a bind, to be sure. He's never been shy about taking credit. And when the White House was reportedly musing about selecting someone like Ted Olson to replace the attorney general who Schumer helped drive from office, Schumer didn't hesitate to publicly recommend a "consensus" candidate like his old acquaintance Michael Mukasey.

But after Sen. Sheldon Whitehouse (D-RI) finished with him, Mukasey was a consensus candidate no more. And given a second chance, he still refused to call drowning someone (under controlled circumstances) torture.

Now, as we said yesterday, it all comes down to the Senate Judiciary Committee, of which Schumer is a very vocal member. And with four Democrats already coming out against Mukasey, Schumer's in the novel position of being one of the key swing votes, reports The Washington Post:

Republicans privately say that the nominee's prospects hang on a few votes, particularly those of Schumer and Sen. Dianne Feinstein (D-Calif.), who has broken ranks with her party in the past.

Until yesterday, Schumer was ducking cameras rather than answer questions about Mukasey. And when he finally talked to reporters, it was clear why he'd been camera shy. He told reporters yesterday on a conference call that he's caught in a "substantive tough spot." And even during that call he vaulted back and forth on how he might vote:

"From this administration, we will never get somebody who agrees with us on issues like torture and wiretapping," Schumer said at one point, suggesting an argument in favor of Mukasey, who faces a Senate Judiciary Committee vote on Tuesday. "The best thing we can hope for is someone who will depoliticize the Justice Department and put rule of law first."

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Must Read

Today's Must Read

Paul Kiel | November 1, 2007, 9:50AM

When you get right down to it, Michael Mukasey has refused to answer the question of whether waterboarding is torture for three reasons, which he provided in his letter to Senate Democrats earlier this week. Two of those are readily disputable (not wanting to tip off "our enemies," for example), but the key to his rationale appears to be his expressed fear that the attorney general's public acknowledgment that waterboarding is torture would place interrogators in "personal legal jeopardy."

By this logic, he can't come out and say that waterboarding is torture because the consequences would be disastrous. The New York Times takes a look at that question today and reports that Mukasey is "steering clear of a potential legal quagmire for the Bush administration" by not answering the question.

One legal expert provides the worst case scenario:

Scott L. Silliman, an expert on national security law at Duke University School of Law, said any statement by Mr. Mukasey that waterboarding was illegal torture “would open up Pandora’s box,” even in the United States. Such a statement from an attorney general would override existing Justice Department legal opinions and create intense pressure from human rights groups to open a criminal investigation of interrogation practices, Mr. Silliman said.

“You would ask not just who carried it out, but who specifically approved it,” said Mr. Silliman, director of the Center on Law, Ethics and National Security at Duke. “Theoretically, it could go all the way up to the president of the United States; that’s why he’ll never say it’s torture,” Mr. Silliman said of Mr. Mukasey.

A Pandora's Box! Does Mukasey have any choice?

But the key word here would have to be "theoretical." "Theoretically," yes, Mukasey's outright condemnation of waterboarding as "repugnant" not just to him personally, but also to the law, would open the door to criminal liability.

But there would appear to be some insurmountable obstacles to that actually happening.

On the question of criminal liability, Marty Lederman, formerly of the Justice Department's Office of Legal Counsel, the office that later provided the legal basis for the use of waterboarding in the field, writes that "There is no possibility -- none -- that the Department of Justice would ever prosecute anyone who acted in reliance on OLC's legal advice about what techniques were lawful." Such a prosecution would in effect pit the Justice Department against itself.

The Times adds that "prosecution in the United States, even under a future administration, would face huge hurdles because Congress since 2005 has adopted laws offering legal protections to interrogators for actions taken with government authorization." (The threat of lawsuits, though far less dire, seems a greater possibility.)

But that theoretical fear is a strong one. The Times notes that Jack Goldsmith, the former chief of the OLC, has said that the Bush Administration lives in constant fear of being prosecuted for their actions. It's for that reason the OLC's ability to issue “free get-out-of jail cards” made Goldsmith's tenure such a disaster for the administration. Having worked so hard to get those cards, the administration sure wouldn't have nominated someone who might take them back.