Policy Studies: Foundations

Task	Context: Priority #1 for newly confirmed U.S. Attorney General Alberto Gonzales is to put the country’s policy interrogation and torture of "War-on-Terror" detainees on more solid and sustainable footing. AG Gonzales would like to take a totally fresh look at the situation, and has quietly contracted with your private consulting firm to provide him some guidance. He has submitted a list of questions that he would like you to address specifically, but has also asked you to suggest and address other questions that you find relevant that are not on his list. • Background research report: Due Tuesday, February 7, 2005 • Final report (including recommendations): Due Thursday, February 17, 2005 Legal Background 1. What exactly are the obligations of the Geneva Conventions and other international agreements on the treatment of detainees. 2. What does the 1994 anti-torture law mean, and how does it apply to the treatment of detainees? 3. Should the protections of the Geneva Conventions apply to alleged terrorists? Does the president have the authority to ignore anti-torture statutes on national security grounds. Current Policy 4. What high-pressure interrogation techniques for extracting information from detainees are currently used. What evidence is there regarding the effectiveness of torture, sub-toturous techniques (high-pressure techniques that stop short of "torture"), and non-physical interrogation techniques (e.g., financial remuneration and promises of relocation)? 5. Are sufficient mechanism in place to ensure that policy set at the highest levels of the U.S. government is clearly communicated to operatives in the field? Policy Pathology 6. Are sufficient mechanism in place to pursue allegations of prisoner abuse, to bring abusers to justice, and compensate victims of abuse? (Note: 26 FBI agents have reported seeing the mistreatment of detainees at the Guantanamo Bay prison). 7. Does our current policy lay the foundation for the abuse scandals in Afghanistan, Iraq and Cuba? Policy Reformulation 8. Who should be involved in any effort to refine U.S. policy regarding interrogation techniques and what principles should be operative so that the line between acceptable and unacceptable means of collecting intelligence from detainees is clearly and appropriately drawn in a manner that protects the rights of detainees without giving up our right and obligation to fight our enemy. 9. Does the changing nature of war and threat to national security require that we consider revisiting the Geneva Conventions and renegotiating international treaties on torture to better wage its war on terrorism. (August report by a panel of experts appointed by the Defense Department endorsed the idea of adapting the 1949 conventions "to the realities of the nature of conflict in the 21st century.") 10. Is it advisable, or even possible, to publicly espouse one policy while secretly endorsing a more aggressive policy toward the interrogation of detainees?
Documents: Law	• GPO Access • CRS Reports • GAO Reports • Torture FOIA (ACLU) • U.N. CONVENTION AGAINST TORTURE (CAT) and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984; entered into force June 26, 1987; The United States signed CAT on April 18, 1988, and ratified the Convention on October 21, 1994, subject to certain declarations, reservations, and understandings). • U.S. Code: TITLE 18 > PART I > CHAPTER 113C—TORTURE [Torture statute] • Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. • Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. • The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens (March 11, 2004) • UNITED STATES OF AMERICA: Human dignity denied Torture and accountability in the 'war on terror' (Amnesty International)
Documents: Government memoranda and reports	• Memorandum from Alburto R. Gonzales, Counsel to the President (January 25, 2002) • Memorandum to Alburto R. Gonzales, from Colin Powel, U.S. Secretary of State (January 26, 2002) • Memorandum for Alburto R. Gonzales, Counsel to the President (August 1, 2002) re: Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A [Torture Memo; a.k.a. the Bybee Memo] • The "Taguba Report" On Treatment Of Abu Ghraib Prisoners In Iraq • Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Consderations (6 March 2003)
Academic	• The Debate on Torture: War Against Virtual States (Sanford Levinson) http://www.dissentmagazine.org/menutest/archives/2003/su03/levinson.htm • Response to Sanford Levinson (Henry Shue) http://www.dissentmagazine.org/menutest/archives/2003/su03/shue.htm • Response to Sanford Levinson (Richard H. Weisberg) http://www.dissentmagazine.org/menutest/archives/2003/su03/weisberg.htm • Stanford Levinson Replies (Sanford Levinson) http://www.dissentmagazine.org/menutest/archives/2003/su03/levinson_reply.htm • Will the U.S. Senate Endorse Torture? (Ivan Eland) http://www.independent.org/newsroom/article.asp?id=1446 • Stephanie Farrior, Professor of Law Email: sfarrior@psu.edu Phone: (717) 240-5249 http://www.dsl.psu.edu/faculty/farrior.cfm
News	• Sign up for google news alert: http://www.google.com/alerts • Rewriting the Laws of War for a New Enemy (2/1/05) • Gonzales: Torture doesn't bar 'cruel, inhuman' tactics (1/26/05) • 'The Interrogators' and 'Torture': Hard Questions (1/23/05) • Terror Suspect Alleges Torture (1/6/05) • Army Doctors Implicated in Abuse (1/6/05) • The Torture Memos (1/1/05) • Fresh Details Emerge on Harsh Methods at Guantánamo (1/1/05) • Justice Expands 'Torture' Definition (12/31/04) Rewriting the Laws of War for a New Enemy: The Geneva Convention isn't the last word. Robert J. Delahunty and John C. Yoo, latimes.com February 1, 2005 Note: Robert J. Delahunty is a law professor at St. Thomas University Law School in Minnesota. John C. Yoo, a law professor at UC Berkeley, is a visiting scholar at the American Enterprise Institute. http://www.latimes.com/news/opinion/commentary/la-oe-yoo1feb01,0,1323677.story?coll=la-news-comment-opinions February 1, 2005 When the Senate considers Alberto R. Gonzales' nomination for attorney general this week, his critics will repeat the accusation that he opened the door to the abuse of Al Qaeda, Afghan and Iraqi prisoners. As Justice Department attorneys in January 2002, we wrote the memos advising that the Geneva Convention on prisoners of war did not apply to the war against Al Qaeda, and that the Taliban lost POW privileges by violating the laws of war. Later that month, Gonzales similarly advised (and President Bush ordered) that terrorists and fighters captured in Afghanistan receive humane treatment, but not legal status as POWs. "Human rights" advocates have resorted to hyperbole and distortion to attack the administration's policy. One writer on this page even went so far as to compare it to Nazi atrocities. Such absurd claims betray the real weaknesses in the position taken by Gonzales' critics. They obscure a basic and immediate question facing the United States: how to adapt to the decline of nation-states as the primary enemy in war. The Geneva Convention is not obsolete nor, despite his critics, did Gonzales say it was. It protects innocent civilians by restricting the use of violence to combatants, and in turn give soldiers protections for obeying the rules of war. Although enemy combatants may have killed soldiers or destroyed property, they are not treated as accused criminals. Instead, nations may detain POWs until the end of hostilities to prevent them from returning to combat. The Geneva Convention provisions make sense when war involves nation-states if, say, hostilities broke out between India and Pakistan, or China and Taiwan. But to pretend that the Geneva Convention applies to Al Qaeda, a non-state actor that targets civilians and disregards other laws of war, denies the reality of dramatic changes in the international system. Shortly after World War II, nations ratified the Geneva Convention in order to mitigate the cruelty and horror of wars between the large mechanized armies that had laid waste to Europe. Now, the main challenges to peace do not arise from the threat of conflict between large national armies, but from terrorist organizations and rogue nations. To believe that the Geneva Convention should apply jot-and-tittle to such enemies reminds us of the first generals of the Civil War, who thought that the niceties that were ideals of Napoleonic warfare could be applied to battles fought by massive armies, armed with ever more advanced weapons and aided by civilian-run mass-production factories and industry. War changes, and the laws of war must change with them. Nations have powerful incentives to comply with the laws of war contained in the Geneva Convention. A United States or a Germany will care for captured prisoners, because any ill treatment could trigger retaliation against its own soldiers. A nation will be concerned with public opinion, both to maintain popular support for its war effort and to keep its allies. Nations have leaderships that can be held accountable, either legally or politically, after the war. Nations have military and civilian bureaucracies that interpret and follow uniform standards of treatment. Unfortunately, multinational terrorist groups have joined nations on the stage of war. They operate without regard to borders and observe no distinction between combatants and civilians. Our weapons for controlling hostile states don't work well against decentralized networks of suicidal operatives, with no citizens or borders to defend. The problem of terrorist groups has been compounded by the emergence of pseudo-states. Pseudo-states often have neither the will nor the means to obey the Geneva Convention. Somalia and Afghanistan were arguably pseudo-states; Iraq under Saddam Hussein was another. Pseudo-states control areas and populations subject to personal, clan or tribal rule. A leader supported by a small clique (like Hussein and his associates from Tikrit) or a tribal faction (like the Pashtuns in Afghanistan) rule. Political institutions are weak or nonexistent. Loyalties depend on personal relationships with tribal chiefs, sheiks or warlords, rather than allegiance to the nation. Quasi-political bodies such as the Iraqi Baathist Party, the Taliban or even the Saudi royal family exercise government power. Defeat of the "national" leader or clique typically results in the complete disintegration of the regime. Multinational terrorist groups and pseudo-states pose a deep problem for treaty-based warfare. Terrorists thrive on killing civilians and flouting conventional rules of war. Leaders like Hussein and the Taliban's Mullah Mohammed Omar ignore the fates of their captured soldiers. They have nothing riding on the humane treatment of American prisoners. A treaty like the Geneva Convention makes perfect sense when it binds genuine nations that can reciprocate humane treatment of prisoners. Its existence and its benefits even argue for the kind of nation-building that uses U.S. troops and other kinds of pressures in places like Somalia, Afghanistan and Iraq; more nation-states make all of us safer. But the Geneva Convention makes little sense when applied to a terrorist group or a pseudo-state. If we must fight these kinds of enemies, we must create a new set of rules. In that important respect, the Geneva Convention will become increasingly obsolete. Rather than attempting as Gonzales' shrill critics do to deny that reality, we should be seeking to address it. Gonzales: Torture treaty doesn't bar 'cruel, inhuman' tactics Frank Davis, Knight Ridder Newspapers January 26, 2005 WASHINGTON - Alberto Gonzales has asserted to the Senate committee weighing his nomination to be attorney general that there's a legal rationale for harsh treatment of foreign prisoners by U.S. forces. In more than 200 pages of written responses to members of the Senate Judiciary Committee, who plan to vote Wednesday on his nomination, Gonzales told senators that laws and treaties prohibit torture by any U.S. agent without exception. But he said the Convention Against Torture treaty, as ratified by the Senate, doesn't prohibit the use of "cruel, inhuman or degrading" tactics on non-U.S. citizens who are captured abroad, in Iraq or elsewhere. Gonzales, White House counsel and a close Bush adviser, described recent reports of prisoner abuse as "shocking and deeply troubling." But he refused to answer questions from senators about whether interrogation tactics witnessed by FBI agents were unlawful. He warned that any public discussion about interrogation tactics would help al-Qaida terrorists by giving them "a road map" of what to expect when captured. He also said the administration was conducting a comprehensive legal review of all practices and that the Justice Department, so far, had concluded that the tactics were lawful. The committee, with 10 Republican and eight Democrats, is expected to send Gonzales' nomination to the full Senate on Wednesday. He would replace Attorney General John Ashcroft, who bade farewell to the department Monday. Several Democrats on the committee are leaning against Gonzales, saying he's been evasive and unwilling to consider that administration decisions in 2002 may have contributed to abuse by U.S. soldiers. Sen. Patrick Leahy of Vermont, the committee's ranking Democrat, called Gonzales' written responses to senators' questions after his Jan. 6 hearing "vague, unresponsive or AWOL." As he did at the hearing, Gonzales said President Bush had ordered that torture not be used by the U.S. military or the CIA. He used the definition of torture in U.S. statutes: an act "specifically intended to inflict severe physical or mental pain or suffering." But he drew a distinction between U.S. anti-torture statutes and the international Convention Against Torture, which calls on nations to prevent acts of "cruel, inhuman or degrading treatment" that may fall short of torture. When the Senate ratified the treaty, it defined such treatment as violations of the Fifth, Eighth and 14th Amendments. Because of that provision, Gonzales said, the Justice Department decided that the convention applies only to actions under U.S. jurisdiction, not "treatment with respect to aliens overseas." He refused to be drawn into a discussion of tactics that might constitute torture. Sen. Edward Kennedy, D-Mass., asked him about reports from FBI agents, recently released, that some detainees were bound hand and foot to lie in their own urine and feces for 18 to 24 hours. "I found those e-mails to be shocking and deeply troubling," Gonzales responded. "I do not think it would be appropriate for me to address reports of interrogation practices discussed in the press and attempt to analyze whether such reported practices are lawful." Asked about a key 2002 Justice Department memo that narrowly defined torture as pain that led to organ failure or death, Gonzales said he couldn't recall if the CIA sought it or if he had asked the department to produce it. He conceded that the memo from the department's Office of Legal Counsel, which was addressed to him, began, "You have asked for our office's view." Cal Jillson, a constitutional scholar who's followed the careers of Gonzales and Bush since they were in Texas, said Gonzales was following basic Bush administration policy: Don't admit mistakes or re-evaluate decisions. "They are very loath to reconsider actions in the wake of the Sept. 11 attacks," said Jillson, a professor at Southern Methodist University. "The message is, the president never approved of torture, but the question is, did you play with the definition so that almost nothing qualified as torture?" Scott Silliman, a former Air Force lawyer who heads the Center on Law, Ethics and National Security at Duke University, said Gonzales made an important point about keeping some discussion classified. But he said recent reports of widespread abuses should require congressional oversight. "With all the reports out now, and all the confusion and ambiguity over what is allowed, Congress has to find a way to deal with this," Silliman added, suggesting closed hearings to examine what's allowed and what isn't. In a recent interview, Bush deflected a question about which interrogation methods he'd reviewed and approved, or whether he'd authorized the transfer of prisoners to countries that use torture. "The only thing I issued was, don't torture. That's the policy of the government," he told a Knight Ridder reporter. "And we don't torture. And if there is torture, we will bring people to account." (Davies reports for The Miami Herald.) 'The Interrogators' and 'Torture': Hard Questions Book Review by Robert D. Kaplan The New York Times January 23, 2005 Inside the Secret War Against Al Qaeda By Chris Mackey and Greg Miller. Illustrated. 484 pp. Little, Brown & Company. $25.95. Torture: A Collection Edited by Sanford Levinson. 319 pp. Oxford University Press. $29.95. AT a time when neither a large national economy nor a modern military is required to produce and deploy a weapon that can destroy a medium-size American city, a good interrogator constitutes a better defense against catastrophe than soldiers or marines. No group of people in the defense establishment get to know the enemy better on a personal level than interrogators do. As the Abu Ghraib scandal reveals, some guards and interrogators can be sadistic ghouls; but many other interrogators could qualify as the most liberal people in the armed services since, for one thing, they have spent years studying the language and the history of their captives. As one Special Forces officer told me in Afghanistan, ''In order to defeat the enemy you first have to love him, and his culture.'' Competent interrogation is less about breaking a prisoner down to learn a single fact than about engaging him in hours upon hours of conversation, and comparing his responses on seemingly irrelevant details with those of others revealed under questioning. It is about looking for one plot and finding another; or rather not finding a plot at all, but happening upon -- for example -- the travel patterns and safe houses of a group of Muslim terrorists of one nationality and deducing how that group differs from another. Real interrogation is about finding shards of evidence in a desert, in which a vital fragment will come not from a high-level Qaeda operative, but from a midlevel functionary who spends weeks in captivity before anyone realizes his importance. In ''The Interrogators: Inside the Secret War Against Al Qaeda,'' Chris Mackey (the pseudonym of an Army interrogator) and Greg Miller, a Los Angeles Times correspondent, write that as a prisoner in Afghanistan reached for his glasses (by now long lost) when he went to examine a photograph, that ''absent-minded move'' alerted interrogators to the fact that he was ''accustomed to poring over documents.'' Interrogators can use many tools that do not involve actual physical abuse. They spread rumors among detainees, wear them down through repetitive questioning and threaten to turn them over to other intelligence services known to employ torture -- all of which cause interrogators constantly to ask themselves where, exactly, does the slippery slope toward real abuse begin? Sadly, it is no use saying torture never works, because as the French authorities learned in Algeria, as the Filipinos learned with their own Muslim insurgents and as the Dubai authorities learned with a Qaeda terrorist, it periodically does work, and in some instances can possibly avert a major attack. While it is true that the threat of torture, as Mackey and Miller report, induces more anxiety among detainees than torture itself, that threat over time will carry little weight if it becomes widely known that the jailers have no record of following through. ''Fear is often an interrogator's best ally,'' the authors note, ''but it doesn't have a long shelf life.'' A captured Qaeda manual even advises Muslim prisoners that people in the West don't ''have the stomach'' for torture, ''because they are not warriors.'' Machiavelli famously said that good men bent on doing good must know how to be bad. And because we all share a social world, he goes on, the virtue of a policy maker resides not in his moral perfection but in the communal result of his act. If one is not already ill at ease with such maxims, consider this: In the ultimate hypothetical case, if a terrorist with hard intelligence about an impending large-scale terrorist strike could be broken by torture, shouldn't it be used? That nauseating question forms the theme of ''Torture: A Collection,'' edited by Sanford Levinson, a professor of government at the University of Texas. What's most striking about these essays is that despite their abstract and theoretical content, they generally do not contradict the depiction of actual interrogators described by Mackey and Miller. The wall between the liberal campus and a conservative, utilitarian-minded military breaks down because the questions are so serious that few of this book's contributors want to engage in polemics, and few -- to their credit -- ever seem completely comfortable with their own conclusions. To follow Machiavelli further: it is not simply and crudely that the ends justify the means. It is that evil, if it is to be employed, should be used only to the minimum extent necessary, and then only to accomplish a demonstrably greater amount of good. As the Princeton professor Michael Walzer writes, ''It is important to stress Machiavelli's own commitment to the existence of moral standards.'' But knowing what that minimum extent is, and knowing with reasonable certainty that a greater amount of good will result, thwarts scholars and interrogators alike. The Harvard law professor Alan Dershowitz argues for legally sanctioning torture in ''ticking bomb'' cases. ''At bottom, my argument is not in favor of torture of any sort,'' he says. ''It is against all forms of torture without accountability.'' His rationale is that in ticking bomb cases the idea that torture in some form will not be used is illusory, and the government should not be able to walk away from responsibility for it. That, in effect, would leave the interrogators with all of the legal and moral blame. Jean Bethke Elshtain, a professor of ethics at the University of Chicago, counters that torture is so extreme that it should remain ''tabooed and forbidden,'' and that any attempt to legitimize torture even in the rarest of cases risks the slippery slope toward normalizing it. Seeking a middle ground, Miriam Gur-Arye, a criminal law professor at the Hebrew University of Jerusalem, argues that in the absence of a concrete terrorist threat, only a specific self-defense argument can justify force in an interrogation: it cannot be justified by the more general and utilitarian -- that is, Machiavellian -- argument of necessity. Interrogators themselves are not above such hairsplitting. After an intense discussion about how humane it would be to deprive prisoners of sleep, and just how much sleep deprivation constituted cruelty, Mackey came to the conclusion that ''if the interrogator followed the exact same regime -- slept, ate . . . and took breaks on the same schedule as the prisoner -- there was no way to argue'' that such treatment was cruel. There is even a name for an interrogator staying with a prisoner until one or the other of them breaks: it's called ''monstering.'' Double-teaming a prisoner, in which different interrogators take turns sleeping, was considered immoral, Mackey says. Because monstering was so hard for an interrogator to endure, it was used only when something important was at stake and the prisoner seemed close to breaking. One interrogator kept a prisoner in a booth for 29 straight hours. It was worth it, Mackey reports: the prisoner had been a translator for Osama bin Laden and disclosed a Qaeda plot to use the chemical agent ricin. But what if the prisoner hadn't confessed? Should he have been double-teamed for 48 hours and beaten? Such questions demand answers, and yet are unanswerable. My own experience covering the military suggests a different approach to the issue. As Mackey and Miller themselves note, the effectiveness of interrogators is regularly undermined by a host of problems that have nothing to do with torture. Rarely do military interrogators get all the language training they need. Their offices are understaffed. When they walk into an interrogation room they often lack vital information about the detainee that another agency in the United States government already possesses, and won't share. Embedded with Army Special Forces in Afghanistan a year ago, I was shocked by how a creaky bureaucracy was stalling the hunt for terrorists on the Pakistani frontier. An administration that dynamically addresses such problems will provide the public with a wider cushion of protection than one that stretches the boundaries of what constitutes physical abuse. No matter how wise those drawing up the guidelines are, however, the art of interrogation does not lend itself to micromanagement from above. Interrogators will forever be forced to make split-second decisions with grave life-and-death consequences. The way toward public safety and out of the moral abyss will come less from philosophy than from sturdy bureaucratic reform: correcting, for example, the broken reserve system that contributed directly to the abuses at Abu Ghraib. An interrogator armed with fluent Arabic and every scrap of intelligence the system can muster, who has mastered the emerging science of eye movements and body signals, who can act threatening as well as empathetic toward a prisoner, should not require the ultimate tool. Robert D. Kaplan, a correspondent for The Atlantic Monthly, is the author of many books, including the forthcoming ''Imperial Grunts: The American Military on the Ground.'' Terror Suspect Alleges Torture: Detainee Says U.S. Sent Him to Egypt Before Guantanamo Dana Priest and Dan Eggen, Washington Post January 6, 2005 U.S. authorities in late 2001 forcibly transferred an Australian citizen to Egypt, where, he alleges, he was tortured for six months before being flown to the U.S. military prison at Guantanamo Bay, Cuba, according to court papers made public yesterday in a petition seeking to halt U.S. plans to return him to Egypt. Egyptian-born Mamdouh Habib, who was detained in Pakistan in October 2001 as a suspected al Qaeda trainer, alleges that while under Egyptian detention he was hung by his arms from hooks, repeatedly shocked, nearly drowned and brutally beaten, and he contends that U.S. and international law prohibits sending him back. Habib's case is only the second to describe a secret practice called "rendition," under which the CIA has sent suspected terrorists to be interrogated in countries where torture has been well documented. It is unclear which U.S. agency transferred Habib to Egypt. Habib's is the first case to challenge the legality of the practice and could have implications for U.S. plans to send large numbers of Guantanamo Bay detainees to Egypt, Yemen, Saudi Arabia and other countries with poor human rights records. The CIA has acknowledged that it conducts renditions, but the agency and Bush administration officials who have publicly addressed the matter say they never intend for the captives to be tortured and, in fact, seek pledges from foreign governments that they will treat the captives humanely. A Justice Department spokesman declined to comment on Habib's allegations, which were filed in November but made public only yesterday after a judge ruled that his petition contained no classified information. The department has not addressed the allegation that he was sent to Egypt. An Egyptian official reached last night said he could not comment on Habib's allegations but added: "Accusations that we are torturing people tend to be mythology." The authority under which renditions and other forcible transfers may be legally performed is reportedly summarized in a March 13, 2002, memo titled "The President's Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations." Knowledgeable U.S. officials said White House counsel Alberto R. Gonzales participated in its production. The administration has refused a congressional request to make it public. But it is referred to in an August 2002 Justice Department opinion -- which Gonzales asked for and helped draft -- defining torture in a narrow way and concluding that the president could legally permit torture in fighting terrorism. When the August memo became public, Bush repudiated it, and last week the Justice Department replaced it with a broader interpretation of the U.N. Convention Against Torture, which prohibits the practice under all circumstances. The August memo is expected to figure prominently in today's confirmation hearing for Gonzales, Bush's nominee to run the Justice Department as attorney general. In a statement he planned to read at his hearing, made public yesterday, Gonzales said he would combat terrorism "in a manner consistent with our nation's values and applicable law, including our treaty obligations." Also yesterday, the American Civil Liberties Union released new documents showing that 26 FBI agents reported witnessing mistreatment of Guantanamo Bay detainees, indicating a far broader pattern of alleged abuse there than reported previously. The records, obtained in an ongoing ACLU lawsuit, also show that the FBI's senior lawyer determined that 17 of the incidents were "DOD-approved interrogation techniques" and did not require further investigation. The FBI did not participate in any of the interviews directly, according to the documents. The new ACLU documents detail abuses seen by FBI personnel serving in Afghanistan, Iraq and Guantanamo Bay, including incidents in which military interrogators grabbed prisoners' genitals, bent back their fingers and, in one case, placed duct tape over a prisoner's mouth for reciting the Koran. In late 2002, an FBI agent recounted that one detainee at Guantanamo Bay had been subjected to "intense isolation" for more than three months and that his cell was constantly flooded with light. The agent reported that "the detainee was evidencing behavior consistent with extreme psychological trauma," including hearing voices, crouching in a corner for hours and talking to imaginary people. According to the e-mails, military interrogators at Guantanamo Bay tried to hide some of their activities from FBI agents, including having a female interrogator rub lotion on a prisoner during Ramadan -- a highly offensive tactic to an observant Muslim man. Habib was taken to the Guantanamo Bay prison in May 2002. Three Britons released from the prison -- Rhuhel Ahmed, Asif Iqbal and Shafiq Rasul -- have said Habib was in "catastrophic shape" when he arrived. Most of his fingernails were missing, and while sleeping he regularly bled from his nose, mouth and ears but U.S. officials denied him treatment, they said. Habib's attorney, Joseph Margulies, said Habib had moved to Australia in the 1980s but eventually decided to move his family to Pakistan. He was there in late 2001 looking for a house and school for his children, Margulies said. U.S. officials accuse Habib of training and raising money for al Qaeda, and say he had advance knowledge of the Sept. 11, 2001, attacks. Australian media have reported that authorities in that country cleared him of having terrorist connections in 2001 and have quoted his Australian attorney as saying he was tortured in Egypt. On Oct. 5, 2001, Pakistani authorities seized Habib, and over three weeks, he asserts in a memorandum filed in U.S. District Court in the District of Columbia, three Americans interrogated him. The petition says he was taken to an airfield where, during a struggle, he was beaten by several people who spoke American-accented English. The men cut off his clothes, one placed a foot on his neck "and posed while another took pictures," the document says. He was then flown to Egypt, it alleges, and spent six months in custody in a barren, 6-foot-by-8-foot cell, where he slept on the concrete floor with one blanket. During interrogations, Habib was "sometimes suspended from hooks on the wall" and repeatedly kicked, punched, beaten with a stick, rammed with an electric cattle prod and doused with cold water when he fell asleep, the petition says. He was suspended from hooks, with his is feet resting on the side of a large cylindrical drum attached to wires and a battery, the document says. "When Mr. Habib did not give the answers his interrogators wanted, they threw a switch and a jolt of electricity" went through the drum, it says. "The action of Mr. Habib 'dancing' on the drum forced it to rotate, and his feet constantly slipped, leaving him suspended by only the hooks on the wall . . . This ingenious cruelty lasted until Mr. Habib finally fainted." At other times, the petition alleges, he was placed in ankle-deep water that his interrogators told him "was wired to an electric current, and that unless Mr. Habib confessed, they would throw the switch and electrocute him." Habib says he gave false confessions to stop the abuse. The State Department's annual human rights report has consistently criticized Egypt for practices that include torturing prisoners. After six months in Egypt, the petition says, Habib was flown to Bagram Air Base in Afghanistan. U.S. intelligence officials have said renditions -- and the threat of renditions -- are a potent device to induce suspected terrorists to divulge information. Habib's petition says the threat that detainees at Bagram would be sent to Egypt prompted many of them to offer confessions. His petition argues that his "removal to Egypt would be unquestionably unlawful" in part because he "faces almost certain torture." The U.N. Convention Against Torture says no party to the treaty "shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." "The fact that the United States would contemplate sending him to Egypt again is astonishing to me," said Margulies, the attorney. Researcher Julie Tate contributed to this report. Army Doctors Implicated in Abuse Medical Workers Helped Tailor Interrogations of Detainees, Article Says Joe Stephens, Washington Post January 6, 2005 U.S. Army doctors violated the Geneva Conventions by helping intelligence officers carry out abusive interrogations at military detention centers, perhaps participating in torture, according to an article in today's edition of the New England Journal of Medicine. Medical personnel helped tailor interrogations to the physical and mental conditions of individual detainees at Abu Ghraib prison in Iraq and the U.S. military prison at Guantanamo Bay, Cuba, according to the article. It says that medical workers gave interrogators access to patient medical files, and that psychiatrists and other physicians collaborated with interrogators and guards who, in turn, deprived detainees of sleep, restricted them to diets of bread and water and exposed them to extreme heat and cold. "Clearly, the medical personnel who helped to develop and execute aggressive counter-resistance plans thereby breached the laws of war," says the four-page article labeled "Perspective." "The conclusion that doctors participated in torture is premature, but there is probable cause for suspecting it." The article was written by M. Gregg Bloche, a law professor at Georgetown University and adjunct professor at Johns Hopkins University, and by Jonathan H. Marks, a London barrister who is a bioethics fellow at Georgetown University Law Center and Johns Hopkins. It is based on interviews with more than two dozen military personnel and on a review of documents released to the American Civil Liberties Union under the Freedom of Information Act. Pentagon officials said yesterday that the article is inaccurate and misrepresents military officials' positions and acts. Doctors did not violate the Geneva Conventions, said William Winkenwerder Jr., assistant secretary of defense for health affairs. Some functioned as consultants to intelligence officers but never acted unethically, he said. "We have no evidence of maltreatment by physicians, or of physicians participating in torture or torturous activity," he said. "We just do not have evidence of that." The article in the medical journal purports to add new facts to the public record and put others in context. But it is most significant because it adds to a chorus of concern expressed by respected medical institutions, said Arthur L. Caplan, director of the Center for Bioethics at the University of Pennsylvania. "The New England Journal of Medicine plays a unique role in serving as a moral beacon for the health profession; when they take it on, it's important," Caplan said. Leonard S. Rubenstein, executive director of Physicians for Human Rights, an advocacy organization based in Cambridge, Mass., added: "This underscores the pressing need for a transparent and full investigation, which the Pentagon has consistently refused to initiate." The Geneva Conventions forbid the use of abusive techniques in questioning prisoners of war. Tactics used in Iraq and Cuba were "transparently coercive," the article says. It discloses that the Army's surgeon general is developing new rules for medical personnel who work with detainees, and its authors call for a broad, public effort to develop new guidelines for military doctors. "The therapeutic mission is the profession's primary role and the core of physicians' professional identity. If this mission and identity are to be preserved, there are some things doctors must not do," the article says. "They should not be party to interrogation practices contrary to human rights law or the laws of war." Doctors also have a duty to document abuse and report it to commanders, the article says, concluding that "by these standards, military medicine has fallen short." Defense Department officials challenged that assessment, saying that military doctors are always expected to act ethically. Doctors who function as caregivers fulfill a different role than doctors who consult with intelligence officers, they said. Often, the consulting doctors help ensure that interrogators do not inadvertently endanger a detainee's health, they said. "We always expect a physician to behave ethically in any circumstance," Winkenwerder said. "There is no question about that. We just would take offense to the implication that there are situations or circumstances where we would advise people to look the other way." He rejected implications that medical personnel control interrogations, and said detainees' medical records are treated in manner similar to those of U.S. prison inmates. When incarcerated, he said, "the individual does not have a complete and absolute right to privacy of medical information. That is the standard in prisons." The article is the most recent criticizing the medical treatment of detainees. In July, an essay in the New England Journal of Medicine urged U.S. military doctors to come forward with any evidence of recent abuse. In August, the British medical journal the Lancet charged that medical workers at Abu Ghraib had falsified death certificates and did not report injuries from beatings. After an inspection at Guantanamo Bay last summer, the International Committee of the Red Cross charged that methods used there were tantamount to torture. The Washington Post reported in June that military interrogators at Guantanamo Bay had been given access to the medical records of individual prisoners despite repeated objections from the Red Cross, a breach of patient confidentiality that ethicists said violated international medical standards. The article in the New England Journal of Medicine says that interrogators in Iraq also had access to prisoners' medical files. The article says that David N. Tornberg, deputy assistant secretary of defense for clinical and program policy, confirmed in an interview that interrogation units at Abu Ghraib and Guantanamo Bay had access to detainee medical records. In fact, interrogators "couldn't conduct their job" without such access, Tornberg is quoted as saying. He and other military officials argue in the article that when a doctor participates in interrogation, he is acting as a combatant, so the Hippocratic oath does not apply. Tornberg is on leave and was unavailable to comment yesterday. Winkenwerder said that he believes Tornberg's comments were misrepresented in the article, and that they did not represent the Defense Department's views. The Torture Memos Boston Globe editorial January 1, 2005 THE PHOTOS released last spring of US soldiers abusing Iraqi prisoners at Abu Ghraib brought that issue to the world's attention. So far just a few low-ranking guards have been punished for what the administration has tried to pass off as isolated actions. But the real extent of the abuse at both Abu Ghraib and Guantanamo is made clear in Defense Department and FBI papers released last month as a result of Freedom of Information suits by human-rights organizations. The documents reveal high-level awareness of the problem long before last spring's disclosures, and they point to continued mistreatment of prisoners since then. The Bush administration should take stronger steps to stop it. The memos also reveal an apparent misapprehension among US interrogators that orders from Deputy Defense Secretary Paul Wolfowitz or President Bush himself authorized abusive techniques in interrogation. The administration denies that any such orders exist. Neither the administration nor the Republican-run Congress has been aggressive in finding out what led US interrogators to think they could use techniques described by the International Red Cross as "tantamount to torture." The only opportunity Congress might have to clarify this question will be the confirmation hearing of Bush's nominee for attorney general, Alberto Gonzales, who as White House counsel wrote a memo calling the Geneva Convention protections for prisoners of war "obsolete." The ranking Democrat on the Senate Judiciary Committee, Patrick Leahy of Vermont, has said he will use the Gonzales hearing to pursue this issue, as well he should. The new memos, which describe US captors putting a lit cigarette into a detainee's ear and fatally shooting one for minor infractions, come not from visiting Red Cross inspectors but from military and FBI personnel. FBI agents expressed concern about the harsh treatment of the prisoners and the danger that the agency would be unfairly blamed for some of it, since military interrogators sometimes told detainees that they were FBI agents. The FBI agents also express doubts about the effectiveness of abusive interrogation methods. While the worst of the actions by US personnel may pale in comparison to what Saddam Hussein's thugs did to prisoners in Abu Ghraib, that is not the standard the United States should be measured by as it fights for a democracy under rule of law in Iraq. Also, setting aside Geneva Convention rules, as the United States did with its Afghan war captives, or ignoring them, as US interrogators have done in Iraq, invites future adversaries of the United States to behave in a similar way with US servicemen or women they capture. The Bush administration must make clear to its forces and to the world at large that prisoner abuse will never be tolerated. Fresh Details Emerge on Harsh Methods at Guantánamo NEIL A. LEWIS, New York Times January 1, 2005 ASHINGTON, Dec. 31 - Sometime after Mohamed al-Kahtani was imprisoned at Guantánamo around the beginning of 2003, military officials believed they had a prize on their hands - someone who was perhaps intended to have been a hijacker in the Sept. 11 plot. But his interrogation was not yielding much, so they decided in the middle of 2003 to try a new tactic. Mr. Kahtani, a Saudi, was given a tranquilizer, put in sensory deprivation garb with blackened goggles, and hustled aboard a plane that was supposedly taking him to the Middle East. After hours in the air, the plane landed back at the United States naval base at Guantánamo Bay, Cuba, where he was not returned to the regular prison compound but put in an isolation cell in the base's brig. There, he was subjected to harsh interrogation procedures that he was encouraged to believe were being conducted by Egyptian national security operatives. The account of Mr. Kahtani's treatment given to The New York Times recently by military intelligence officials and interrogators is the latest of several developments that have severely damaged the military's longstanding public version of how the detention and interrogation center at Guantánamo operated. Interviews with former intelligence officers and interrogators provided new details and confirmed earlier accounts of inmates being shackled for hours and left to soil themselves while exposed to blaring music or the insistent meowing of a cat-food commercial. In addition, some may have been forcibly given enemas as punishment. While all the detainees were threatened with harsh tactics if they did not cooperate, about one in six were eventually subjected to those procedures, one former interrogator estimated. The interrogator said that when new interrogators arrived they were told they had great flexibility in extracting information from detainees because the Geneva Conventions did not apply at the base. Military officials have gone to great lengths to portray Guantánamo as a largely humane facility for several hundred prisoners, where the harshest sanctioned punishments consisted of isolation or taking away items like blankets, toothpaste, dessert or reading material. Maj. Gen. Geoffrey D. Miller, who was the commander of the Guantánamo operation from November 2002 to March 2004, regularly told visiting members of Congress and journalists that the approach was designed to build trust between the detainee and his questioner. "We are detaining these enemy combatants in a humane manner," General Miller told reporters in March 2004. "Should our men or women be held in similar circumstances, I would hope they would be treated in this manner." His successor, Brig. Gen. Jay W. Hood, told reporters in November that he was "satisfied that the detainees here have not been abused, they've not been mistreated, they've not been tortured in any way." Journalists who were permitted to view an interview session from behind a glass wall during General Hood's tenure were shown an interrogator and detainee sharing a milkshake and fries from the base's McDonald's and appearing to chat amiably. It became apparent to reporters comparing notes in August, however, that the tableau of the interrogator and prisoner sharing a McDonald's meal was presented to at least three sets of journalists. In addition to the account of Mr. Kahtani's treatment, the new interviews provide details and confirm some of the accounts in other recent disclosures about procedures at Guantánamo: the November report in which the International Committee of the Red Cross complained privately last summer to the United States government that the procedures at Guantánamo were "tantamount to torture"; memorandums from F.B.I. officials, most of which were released in December as part of a lawsuit brought by the American Civil Liberties Union; and another set of interviews with The Times in October in which other former Guantánamo officials described coercive and abusive techniques regularly employed there. The information from the various sources frequently matched, providing corroboration of the use of specific procedures, which included prolonged sleep deprivation and shackling prisoners in uncomfortable positions for many hours. One F.B.I. agent wrote his superiors that he saw such restraining techniques several times. In the most gruesome of the bureau memorandums, he recounted observing a detainee who had been shackled overnight in a hot cell, soiled himself and pulled out tufts of hair in misery. Military officials who participated in the practices said in October that prisoners had been tormented by being chained to a low chair for hours with bright flashing lights in their eyes and audio tapes played loudly next to their ears, including songs by Lil' Kim and Rage Against the Machine and rap performances by Eminem. In a recent interview, another former official added new details, saying that many interrogators used a different audio tape on prisoners, a mix of babies crying and the television commercial for Meow Mix in which the jingle consists of repetition of the word "meow." The people who spoke about what they saw or whose duties made them aware of what was occurring said they had different reasons for granting interviews. Some said they objected to the methods, others said they objected to what they regarded as a chaotic and badly run system, while others offered no reason. They all declined to be identified by name, some saying they feared retaliation. Lt. Col. Leon H. Sumpter, the spokesman for the military command at Guantánamo, said in a statement that officials would not comment on accusations about the treatment of any individual detainee including Mr. Kahtani, who was captured in Afghanistan. "We do not discuss specific interrogation techniques nor do we identify any specific detainee," Colonel Sumpter said in a statement. "All detainees are safeguarded and are assured food, drink, clothing, shelter, health care and basic rights, all in accordance with the Geneva Convention. The U.S. does not permit, tolerate or condone torture by any of its personnel or employees." Colonel Sumpter said that the interrogation regimen at Guantánamo had produced useful intelligence "based on trust and not out of fear or duress." The intelligence officials who spoke with The Times said that the interrogation personnel and their assigned prisoners were divided into five groups. Four were geographically based - one for Saudi Arabia, one for the Gulf States, another for Pakistan and Afghanistan and the last for Asia, Europe and the Americas. The fifth, termed "special projects," included Mr. Kahtani. There was a high confidence among military intelligence officials that Mr. Kahtani was a dangerous operative of Al Qaeda. The federal commission investigating the Sept. 11 attacks concluded in its June report that he was denied entry into the United States on Aug. 4, 2001, at the Orlando airport, the same day that Mohamed Atta, the plot's ringleader, was there and most likely intended to meet him. The officials who spoke about the detainees' treatment said, however, that very few of the other prisoners had much value. "So much of the questioning was about Afghanistan," one intelligence official said. "Most of it was dated. Information about facilitators and recruiters was useful only in style, not in facts." The clearest indication that senior commanders at Guantánamo were aware of and supported what was occurring may be in some F.B.I. memorandums. One, dated May 10, 2003, and written by an unidentified agent, describes a sharp exchange between bureau officials and General Miller and Maj. Gen. Michael Dunlavey, who was in charge of the intelligence operations at Guantánamo then. "Both sides agreed that the bureau has its way of doing things and the D.O.D. has their marching orders from SecDef," the memorandum said, using abbreviations for the Department of Defense and the secretary of defense. "Although the two techniques differed drastically, both generals believed they had a job to do." The frustration caused by Mr. Kahtani's refusal to cooperate set off a high-level review of allowable interrogation techniques, according to documents released earlier by the Pentagon. After officials at Guantánamo asked for more leeway in dealing with Mr. Kahtani, Defense Secretary Donald H. Rumsfeld in December 2002 approved a list of 16 techniques for use there in addition to the 17 methods in the Army Field Manual. He suspended those approvals the next month after some Navy lawyers complained that they were excessive and possibly illegal. But after a review, Mr. Rumsfeld issued a final policy in April 2003, approving 24 techniques, some of which needed his permission to be used. None of the approved techniques, however, covered some of what people have now said occurred. Mr. Kahtani was, for example, forcibly given an enema, officials said, which was used because it was uncomfortable and degrading. Pentagon spokesmen said the procedure was medically necessary because Mr. Kahtani was dehydrated after an especially difficult interrogation session. Another official, told of the use of the enema, said, however, "I bet they said he was dehydrated," adding that that was the justification whenever an enema was used as a coercive technique, as it had been on several detainees. In order to carry on the charade that he was not at Guantánamo, the military arranged it so Mr. Kahtani was not visited by the Red Cross on a few of its regular visits, creating a window of several months, said a person who dealt with him at Guantánamo. Officials at the Washington office of the Red Cross, which makes periodic visits to each of the Guantánamo detainees, said they would not discuss their meetings with any prisoners as part of their agreement with the United States government. Two interrogators confirmed several of the complaints in the Red Cross report, including the notion that interrogators were able to obtain prisoners' medical records easily, which human rights groups say could discourage inmates from seeking medical care. The interrogators also discussed another factor in the Red Cross report, the use of a Behavioral Science Consultation Team, known as Biscuit, comprising a psychologist or psychiatrist and psychiatric workers. The team was used to suggest ways to make prisoners more cooperative in interrogations. "They were supposed to help us break them down," one said. The same former interrogator said the Red Cross report was correct in asserting that some female interrogators used sexual taunts to harass the detainees. It is unclear whether the Justice Department's new, broader definition of torture, posted on the department's Web site late Thursday, would have affected operations at Guantánamo. Justice Expands 'Torture' Definition R. Jeffrey Smith and Dan Eggen Washington Post December 31, 2004 The Justice Department published a revised and expansive definition late yesterday of acts that constitute torture under domestic and international law, overtly repudiating one of the most criticized policy memorandums drafted during President Bush's first term. In a statement published on the department's Web site, the head of its Office of Legal Counsel declares that "torture is abhorrent both to American law and values and international norms" and goes on to reject a previous statement that only "organ failure, impairment of bodily function, or even death" constitute torture punishable by law. That earlier definition of torture figured prominently in complaints by Democrats and human rights groups about White House counsel Alberto R. Gonzales, who oversaw its creation and is Bush's nominee to become attorney general for the second term. The new memo's public release came one week before the start of Senate Judiciary Committee hearings on Gonzales's nomination. Acting Assistant Attorney General Daniel Levin said in the new memo that torture may consist of acts that fall short of provoking excruciating and agonizing pain and thus may include mere physical suffering or lasting mental anguish. His opinion is meant, according to its language, to undermine any notion that those who conduct harmful interrogations may be exempt from prosecution. This second effort by the Bush administration to parse the legal meaning of the word "torture" was provoked by the damaging political fallout from the disclosure this summer of the first memo, drafted in August 2002 and criticized by human rights lawyers and experts around the globe. Many of the critics charged that the first memo -- which they said laid out a very narrow view of what behavior might constitute torture and was crafted to help interrogators at the CIA evade prosecution -- created the context for a record of persistent ill treatment by that agency and the U.S. military of detainees at prisons in Iraq, Afghanistan, Cuba's Guantanamo Bay and undisclosed locations. "Clearly the release of this now is backfilling for Gonzales's confirmation hearing," said I. Michael Greenberger, a senior Justice Department official in the Clinton administration who now heads the Center for Health and Homeland Security at the University of Maryland. "These memos have been a tremendous source of embarrassment to both Gonzales and the administration." Greenberger said that recent accounts of widespread abuse at U.S. detention facilities -- including disclosures that military interrogation practices were sharply criticized over the past two years by FBI and Defense Intelligence Agency personnel in the field -- have given ammunition to those within the administration who favor adherence to international norms against torture. "It could be that this is not just a cynical ploy but a real sign of change," Greenberger said. One of the most controversial provisions of the earlier memorandum, signed by Levin's predecessor, Jay S. Bybee, was an assertion that the president's executive powers were sufficient to permit tolerance of torturous acts in extraordinary circumstances. The International Committee of the Red Cross had declared in response that the prohibition on torture, embodied in a global convention signed by the United States, has no exceptions. But advocates of strict adherence to the convention previously lost interagency battles to hard-liners in the Defense Department, the Justice Department and the White House, who maintained that the president has expansive powers during the war on terrorism. The new memo pointedly sidesteps this issue, stating that the "consideration of the bounds of any such authority would be inconsistent with the president's unequivocal directive that United States personnel not engage in torture." The memo, which states that it "supersedes the August 2002 memorandum in its entirety," also drops an attempt in the earlier version to rule that harmful acts not specifically intended to cause severe pain and suffering might be legal, and to define "specific intent." Instead, it deliberately left the notion of "specific intent" undefined to avoid, Levin wrote, any notion that conduct amounting to torture might under some circumstances be considered legal. The memo also explicitly states that "a defendant's motive (to protect national security, for example) is not relevant to the question" of his or her intent under the law. Tom Malinowski, Washington advocacy director for Human Rights Watch, which has been critical of the Bush administration's legal opinions regarding the treatment of detainees, gave the memo a generally positive review and said its "definition of torture is not as tortured as it was." But John Yoo, a law professor at the University of California at Berkeley who helped draft the first memo while working in the legal counsel's office, said the new version "makes it harder to figure out how the torture statute applies to specific interrogation methods. It muddies the water. Our effort . . . was to interpret the statute clearly."