Rumsfeld accused of torture in detainees' law suit

1. Suit by Iraqis and Afghans Claims Rumsfeld Ordered Torture
The Justice Department has asked the judge to throw out the ACLU-supported case against the former defense secretary.
By Warren Richey/Christian Science Monitor

As Donald Rumsfeld prepares to leave his job as secretary of Defense, the American Civil Liberties Union (ACLU) is seeking to hold him responsible for what it says was widespread torture carried out at his direction. [Editor's Note: The original version was changed because the American Civil Liberties Union says its civil suit is not intended to prove a war crime.]

Lawyers representing Mr. Rumsfeld and three US Army commanders are set to appear in federal court here Friday in response to a lawsuit charging that the Defense secretary authorized torture and other illegal abuse of military detainees in Afghanistan and Iraq - including at the infamous Abu Ghraib prison.

The case is important because it represents an attempt to hold US officials accountable for alleged illegal abuse of Iraqi and Afghan civilians who were never detained as enemy combatants or charged with any crime. But some legal analysts say the suit may be aimed more at shaping public opinion than winning in court because such cases are difficult to pursue.

The Justice Department lawyers representing Rumsfeld have not responded directly to the torture charges' Instead, they are asking Chief US District Court Judge Thomas Hogan to throw the suit out because Rumsfeld is entitled to immunity from lawsuits challenging his official actions as Defense secretary. Chief Judge Hogan has scheduled two hours of argument on the dismissal request.

The five Iraqi citizens and four Afghan citizens identified in the suit claim that they were subject to beatings, cutting with knives, sexual humiliation, confinement in a wooden box, sleep deprivation, mock executions, and stress positions, the suit says.

"The secretary of Defense personally issued orders and authorized illegal interrogation techniques and caused torture," says ACLU lawyer Lucas Guttentag. "[Rumsfeld] was directly and personally involved."

Mr. Guttentag says that Rumsfeld also "failed to take the required actions to stop abuse in the face of overwhelming uncontroverted evidence that he received and was aware of."

The Defense secretary had been notified of the abuses via Red Cross reports, human rights organization reports, military internal reports, and FBI reports, according to documents obtained by the ACLU under the Freedom of Information Act, Guttentag says.

In addition to Rumsfeld, the suit names Lt. Gen. Ricardo Sanchez, commander of coalition forces in Iraq in 2003 and 2004, Col. Janis Karpinski, commander of the military unit that ran detention facilities in Iraq, and Col. Thomas Pappas, commander of the military unit that gathered intelligence in Iraq.

The civil suit was filed by lawyers with the ACLU and Human Rights First. It says Rumsfeld and the officers violated constitutional protections, international law, and the Geneva Conventions. The suit seeks compensatory damages and a judicial declaration that the legal rights of the detainees were violated under the Constitution, the Geneva accords, and other international law.

Government lawyers counter that Iraqi and Afghan citizens do not enjoy rights under the US Constitution or the Geneva Conventions to sue senior US officials for official actions taken overseas.

"I think it is a very uphill battle for the litigants here. I don't think this case is going to go very far," says Scott Silliman, a Duke University law professor and director of the Center on Law, Ethics and National Security.

"When you are dealing with the secretary of Defense what you have got to do is show that he was so far outside the scope of his duties as to be culpable," Professor Silliman says. "That is a hard standard to meet."

What makes it a particularly hard standard, Silliman and other legal analysts say, is that Rumsfeld was authorizing new interrogation techniques at the same time Justice Department lawyers were issuing legal memos justifying harsh, coercive interrogation tactics.

To prevail, ACLU lawyers must show that Rumsfeld knew what the law required and intentionally ignored those clearly established requirements. Short of that, Rumsfeld is entitled to immunity, says Richard Samp, a national security and constitutional law expert at the Washington Legal Foundation. "I've seen no document that says 'I hereby command you to inflict the following torture on individuals.' "

Others say immunity is not warranted in Rumsfeld's case. "Accountability, not immunity, for the conduct of military personnel within defendants' command is fundamental to military law, discipline and the law of war," writes Sidney Rosdeitcher in a friend-of-the-court brief filed on behalf of a group of military law experts.

Although allegations in the suit are the equivalent of war crimes, it is a civil case, not a criminal one. Only the US government is empowered to prosecute war crimes in criminal court or before a military court. Various commissions identified command-level problems as contributing to interrogation abuses, but government prosecution has focused on punishing "rogue individuals."


2. Rumsfeld Faces Lawsuit From Detainees
Former prisoners accuse him of torture techniques in Iraq, Afghanistan.
By Joel Seidman/MSNBC News

On Friday, the U.S. District Court in Washington will be the scene of a parting shot at outgoing Secretary of Defense Donald H. Rumsfeld.

Former detainees represented by human rights groups accuse him - along with a top general of the Iraq war, a former commander of the infamous Abu Ghraib prison in Iraq and a commander of U.S. military intelligence and police forces - with "derelictions of duty and command" and promoting the practice of inflicting "physical and psychological injuries" on civilians held by the U.S. military in Iraq and Afghanistan.

The case of Ali v. Rumsfeld, to be heard before Chief Judge Thomas Hogan, pits lawyers from two human rights organizations representing nine former detainees at Abu Ghraib and the Bagram military base in Afghanistan, with attorneys representing Rumsfeld, Gen. Ricardo Sanchez, former Brig. Gen. Janis Karpinski and Col. Thomas Pappas.

The case is an attempt to have U.S. officials held accountable for alleged abuse of Iraqi and Afghan civilians who were never held as enemy combatants or charged with any crime.

The former detainees accuse Rumsfeld and others of being personally responsible for approving torture techniques and violating the U.S. Constitution. Rumsfeld argues that they are all immune from liability.

Rumsfeld, to be replaced later this month by Robert Gates, who was confirmed by the Senate this week, argues "that alien military detainees held outside the United States are not generally entitled to constitutional protections."

Rumsfeld's lawyers claim qualified immunity

His lawyers contend that under the qualified immunity doctrine, "federal officials are immune from suit" unless they violate a clearly established constitutional right. They say that aliens held in a military detention facility in the field of battle abroad simply do not have established constitutional rights during their alleged detention and abuse.

The former detainees who filed the lawsuit say they were all eventually released from detention and never charged with any crime or wrongdoing.

The detainees - five were held at Abu Ghraib and four at Bagram - accuse Rumsfeld and the others of subjecting them to "torture and other cruel, inhuman or degrading treatment or punishment, including severe and repeated beatings, cutting with knives, sexual humiliation and assault, confinement in a wooden box, forcible sleep and sensory deprivation, mock executions, death threats, and restraint in contorted and excruciating positions," according to court documents.

Lawyers for the American Civil Liberties Union and Human Rights First argue that Rumsfeld "authorized an abandonment of our nation's inviolable and deep-rooted prohibition against torture or other cruel, inhuman or degrading treatment or punishment of detainees in U.S. military custody." They say these acts precipitated "further violations of law and directly led to the abuse of Plaintiffs and other detainees in Afghanistan and Iraq."

Pattern of rights abuse alleged

The human rights attorneys will also argue Friday that high-ranking commanders "permitted and implemented" an unlawful policy, pattern or practice of torture and other cruel, inhuman or degrading treatment of detainees.

The suit seeks compensatory damages and a judicial declaration that the legal rights of the prisoners were violated under the Constitution, the Geneva accords and other international law.

Although allegations in the suit are the equivalent of war crimes, it is a civil case, not a criminal one. Only the U.S. government is empowered to prosecute war crimes in criminal court or before a military court.


3. The U.S. Has a History of Using Torture -- by Alfred W. McCoy/History News Network

In April 2004, Americans were stunned when CBS broadcast those now-notorious photographs from Iraq's Abu Ghraib prison, showing hooded Iraqis stripped naked while U.S. soldiers stood by smiling. As this scandal grabbed headlines around the globe, Defense Secretary Donald Rumsfeld insisted that the abuses were "perpetrated by a small number of U.S. military," whom New York Times’ columnist William Safire soon branded "creeps"--a line that few in the press had reason to challenge.

When I looked at these photos, I did not see snapshots of simple brutality or a breakdown in military discipline. After more than a decade of studying the Philippine military’s torture techniques for a monograph published by Yale back 1999, I could see the tell-tale signs of the CIA’s psychological methods. For example, that iconic photo of a hooded Iraqi with fake electrical wires hanging from his extended arms shows, not the sadism of a few “creeps,” but instead the two key trademark’s of the CIA’s psychological torture. The hood was for sensory disorientation. The arms were extended for self-inflicted pain. It was that simple; it was that obvious.

After making that argument in an op-ed for the Boston Globe two weeks after CBS published the photos, I began exploring the historical continuity, the connections, between the CIA torture research back in the 1950s and Abu Ghraib in 2004. By using the past to interrogate the present, I published a book titled A Question of Torture last January that tracks the trail of an extraordinary historical and institutional continuity through countless pages of declassified documents. The findings are disturbing and bear directly upon the ongoing bitter debate over torture that culminated in the enactment of the Military Commissions law just last October.

From 1950 to 1962, the CIA led a secret research effort to crack the code of human consciousness, a veritable Manhattan project of the mind with costs that reached a billion dollars a year. Many have heard about the most outlandish and least successful aspect of this research -- the testing of LSD on unsuspecting subjects and the tragic death of a CIA employee, Dr. Frank Olson, who jumped to his death from a New York hotel after a dose of this drug. This Agency drug testing, the focus of countless sensational press accounts and a half-dozen major books, led nowhere.

But obscure CIA-funded behavioral experiments, outsourced to the country’s leading universities, produced two key findings, both duly and dully reported in scientific journals, that contributed to the discovery of a distinctly American form of torture: psychological torture. With funding from Canada’s Defense Research Board, famed Canadian psychologist Dr. Donald O. Hebb found that he could induce a state akin to psychosis in just 48 hours. What had the doctor done—drugs, hypnosis, electroshock? No, none of the above.

For two days, student volunteers at McGill University, where Dr. Hebb was chair of Psychology, simply sat in comfortable cubicles deprived of sensory stimulation by goggles, gloves, and ear muffs. One of Hebb’s subjects, University of California-Berkeley English professor Peter Dale Scott, has described the impact of this experience in his 1992 epic poem, “Listening to the Candle”:

nothing in those weeks added up
yet the very aimlessness
preconditioning my mind…
of sensory deprivation
as a paid volunteer
in the McGill experiment
for the US Air Force
(two CIA reps at the meeting)
my ears sore from their earphones’
amniotic hum my eyes
under two bulging halves of ping pong balls
arms covered to the tips with cardboard tubes
those familiar hallucination
I was the first to report
as for example the string
of cut-out paper men
emerging from a manhole
in the side of a snow-white hill
distinctly two-dimensional

Dr. Hebb himself reported that after just two to three days of such isolation “the subject’s very identity had begun to disintegrate.” If you compare a drawing of Dr. Hebb’s student volunteers published in “Scientific American” with later photos of Guantanamo detainees, the similarity is, for good reason, striking.

During the 1950s as well, two eminent neurologists at Cornell Medical Center working for the CIA found that the KGB’s most devastating torture technique involved, not crude physical beatings, but simply forcing the victim to stand for days at time—while the legs swelled, the skin erupted in suppurating lesions, the kidneys shut down, hallucinations began. Again, it you look at those hundreds of photos from Abu Ghraib you will see repeated use of this method, now called “stress positions.”

After codification in its 1963 KUBARK manual, the CIA spent the next thirty years propagating these torture techniques within the US intelligence community and among anti-communist allies across Asia and Latin America.

Although the Agency trained military interrogators from across Latin America, our knowledge of the actual torture techniques comes from a single handbook for a Honduran training session, the CIA’s “Human Resources Exploitation Manual — 1983.” To establish control at the outset the questioner should, the CIA instructor tells his Honduran trainees, “manipulate the subject’s environment, to create unpleasant or intolerable situations, to disrupt patterns of time, space, and sensory perception.” To effect this psychological disruption, this 1983 handbook specified techniques that seem strikingly similar to those outlined 20 years earlier in the Kubark Manual and those that would be used 20 years later at Abu Ghraib.

After the Cold War

When the Cold War came to a close, Washington resumed its advocacy of human rights, ratifying the UN Convention Against Torture in 1994 that banned the infliction of “severe” psychological and physical pain. On the surface, the United States had apparently resolved the tension between its anti-torture principles and its torture practices.

Yet when President William Clinton sent this UN Convention to Congress for ratification in 1994, he included language drafted six years earlier by the Reagan administration—with four detailed diplomatic “reservations” focused on just one word in the convention’s 26-printed pages. That word was “mental.”

Significantly, these intricately-constructed diplomatic reservations re-defined torture, as interpreted by the United States, to exclude sensory deprivation and self-inflicted pain—the very techniques the CIA had refined at such great cost. Of equal import, this definition was reproduced verbatim in domestic legislation enacted to give legal force to the UN Convention--first in Section 2340 of the US Federal Code and then in the War Crimes Act of 1996.

Remember that obscure number-- Section 2340 —for, as we will see, it is the key to unlocking the meaning of the controversial Military Commissions Law enacted by the US Congress just last September.

In effect, Washington had split the UN Convention down the middle, banning physical torture but exempting psychological abuse. By failing to repudiate the CIA’s use of torture, while adopting a UN convention that condemned its practice, the United States left this contradiction buried like a political land mine ready to detonate with such phenomenal force, just 10 years later, in the Abu Ghraib scandal.

War on Terror

Right after his public address to a shaken nation on September 11, 2001, President Bush gave his White House staff wide secret orders, saying, “I don’t care what the international lawyers say, we are going to kick some ass.”

In the months that followed, Administration attorneys translated their president’s otherwise unlawful orders into U.S. policy into three controversial, neo-conservative legal doctrines: (1.) the president is above the law, (2.) torture is legally acceptable, and (3.) the US Navy base at Guantanamo Bay is not US territory.

To focus on the single doctrine most germane to the history of psychological torture, Assistant Attorney General Jay Bybee found grounds, in his now notorious August 2002 memo, for exculpating any CIA interrogators who tortured, but later claimed their intention was information instead of pain. Moreover, by parsing the UN and US definitions of torture as “severe” physical or mental pain, Bybee concluded that pain equivalent to “organ failure” was legal—effectively allowing torture right up to the point of death.

Less visibly, the administration began building a global gulag for torture at Abu Ghraib, Bagram, Guantanamo, and a half-dozen additional sites worldwide. In February 2002, the White House assured the CIA that the administration’s public pledge to abide by spirit of the Geneva Conventions did not apply to its operatives; and, significantly, it allowed the Agency ten “enhanced” interrogation methods designed by Agency psychologists that included “water boarding.”

Waterboarding

Over the past three years, this term “water boarding” has surfaced periodically in press accounts of CIA interrogation without any real understanding of psychologically devastating impact of this seemingly benign method. It has a venerable lineage, first appearing in a 1541 French judicial handbook, where it was called “Torturae Gallicae Ordinariae” or “Standard Gallic Torture.” But it would now become, under the War on Terror, what CIA director Porter Goss called, in March 2005 congressional testimony, a “professional interrogation technique.”

There are several methods for achieving water boarding’s perverse effect of drowning in open air: most frequently, by making the victim lie prone and then constricting breathing with a wet cloth, a technique favored by both the French Inquisition and the CIA; or, alternatively, by forcing water directly and deeply into the lungs, as French paratroopers did during the Algerian War.

After French soldiers used the technique on Henri Alleg during the Battle for Algiers in 1957, this journalist wrote a moving description that turned the French people against both torture and the Algerian War. “I tried,” Alleg wrote, “by contracting my throat, to take in as little water as possible and to resist suffocation by keeping air in my lungs for as long as I could. But I couldn’t hold on for more than a few moments. I had the impression of drowning, and a terrible agony, that of death itself, took possession of me.”

Let us think about the deeper meaning of Alleg’s sparse words--“a terrible agony, that of death itself.” As the water blocks air to the lungs, the human organism’s powerful mammalian diving reflex kicks in, and the brain is wracked by horrifically painful panic signals--death, death, death. After a few endless minutes, the victim vomits out the water, the lungs suck air, and panic subsides. And then it happens again, and again, and again--each time inscribing the searing trauma of near death in human memory.

Guantanamo

In late 2002, Defense Secretary Rumsfeld appointed General Geoffrey Miller to command Guantanamo with wide latitude for interrogation, making this prison an ad hoc behavioral laboratory. Moving beyond the CIA’s original attack on sensory receptors universal to all humans, Guantanamo’s interrogators stiffened the psychological assault by exploring Arab “cultural sensitivity” to sexuality, gender identity, and fear of dogs. General Miller also formed Behavioral Science Consultation teams of military psychologists who probed each detainee for individual phobias, such as fear of dark or attachment to mother.

Through this total three-phase attack on sensory receptors, cultural identity, and individual psyche, Guantanamo perfected the CIA’s psychological paradigm. Significantly, after regular inspections of Guantanamo from 2002 the 2004, the Red Cross reported: “The construction of such a system…cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture.”

Abu Ghraib

These enhanced interrogation policies, originally used only against top Al Qaeda operatives, soon proliferated to involve thousands of ordinary Iraqis when Baghdad erupted in a wave of terror bombings during mid 2003 that launched the resistance to the US occupation. After a visit from the Guantanamo chief General Miller in September 2003, the U.S. commander for Iraq, General Ricardo Sanchez, issued orders for sophisticated psychological torture.

As you read the following extract from those orders, please look for the defining attributes of psychological torture--specifically, sensory disorientation, self-inflicted pain, and that recent innovation, attacks on Arab cultural sensitivities.

U. Environmental Manipulation: Altering the environment to create moderate discomfort (e.g. adjusting temperatures or introducing an unpleasant smell)…

V. Sleep Adjustment: Adjusting the sleeping times of the detainee (e.g. reversing the sleeping cycles from night to day).

X. Isolation: Isolating the detainee from other detainees ... [for] 30 days.

Y. Presence of Military Working Dogs: Exploits Arab fear of dogs while maintaining security during interrogations…

AA. Yelling, Loud Music, and Light Control: Used to create fear, disorient detainee and prolong capture shock...

CC. Stress Positions: Use of physical posturing (sitting, standing, kneeling, prone, etc.

Indeed, my review of the hundreds of still-classified photos taken by soldiers at Abu Ghraib reveals, not random, idiosyncratic acts from separate, sadistic minds, but just three psychological torture techniques repeated over and over ad nauseum: hooding for sensory deprivation; short shackling, long shackling, and enforced standing for self inflicted pain; and dogs, total nudity, and sexual humiliation for that recent innovation, exploitation of Arab cultural sensitivity. It is no accident that Private Lynndie England was photographed leading an Iraqi detainee leashed like a dog.

After Abu Ghraib

Let’s look at the aftermath of the Abu Ghraib scandal, seeing how America moved by degrees to legalization of these CIA psychological torture techniques. Confronted by public anger over detainee abuse at Abu Ghraib, the Bush White House has fought back by defending torture as a presidential prerogative. By contrast, an ad hoc civil society coalition of courts, press, and human rights groups has mobilized to stop the abuse.

In a dramatic denouement of June 2006, the US Supreme Court decided in Hamdan v. Rumsfeld that Bush’s military commissions were illegal because they did not meet the requirement, under common Article 3 of the Geneva Conventions, that Guantanamo detainees be tried with “all the judicial guarantees…recognized as indispensable by civilized peoples.”

Then on September 6, in a dramatic bid to legalize his now-illegal policies in the aftermath of the Hamdan decision, President Bush announced he was transferring fourteen top Al Qaeda captives from secret CIA prisons to Guantanamo Bay. At once both repudiating and legitimating past abuses, Bush denied that he had authorized “torture” while simultaneously defending the CIA's use of a tough “alternative set of procedures” to extract “vital information.” To allow what he called the “CIA program” to go forward, President Bush announced that he was sending legislation to Congress that would legalize the same presidential prerogatives in treating detainees that had been challenged by the Supreme Court.

At first, Bush’s bill seemed to arouse strong opposition by three Republican veterans on the Senate Armed Services Committee--Senators Graham, McCain, and Warner. But after tense, daylong negotiations inside Vice President Cheney’s Senate office on September 21, these Republican partisans reached a compromise that sailed through Congress within a week, and without any amendments, to become the Military Commissions Law 2006.

Among its many objectionable features, this law strips detainees of their habeas corpus rights, sanctions endless detention without trial, and allows the use of tortured testimony before Guantanamo’s Military Commissions. Most significantly, this law allows future CIA interrogators ample latitude for use of psychological torture by using, verbatim, the narrow definition of “severe mental pain” the U.S. first adopted back in 1994 when it ratified the UN Convention Against Torture and enacted a complementary Federal law, Section 2340 of the US code, to give force to this treaty.

The current law’s elusive definition of “severe mental pain” is concealed under Para. 950 V, Part B, Sub-Section B on page 70 of the 96-page “Military Commissions Law 2006” that reads: “Severe Mental Pain or Suffering Defined: In this section, this term ‘severe mental pain…’ has the meaning given that term in Sect. 2340 (2) of Title 18 [of the Federal code].”

And what is that definition in section 2340? This is, of course, the same highly limiting definition the US first adopted back in 1994-95 when it ratified the UN Anti-Torture Convention.

Simply put, this legislation’s highly restricted standard for severe mental suffering does not prohibit any aspect of the sophisticated torture techniques that the CIA has refined, over the past half-century, into a total assault on the human psyche.

To make this point clear, let us compare the law’s very narrow, four-part standard for “severe mental suffering” with the CIA’s psychological techniques to see which, if any, of the agency’s actual methods are banned. Under this law, Section 2340, there are only four practices that constitute, in any way, “severe mental pain,” including: drug injection; death threats; threats against another; and extreme physical pain.

In actual practice, this definition does not ban any of the dozens of CIA psychological methods developed over five decades, which include:

--First, self-inflicted pain, via enforced standing and so-called “stress positions” which are cruel contortions enforced by shackling.

--Second, sensory disorientation through temporal and environmental manipulation exemplified sleep deprivation, protracted isolation, and extremes of heat and cold, light and dark, noise and silence, isolation and intensive interrogation.

--Third, attacks on cultural identity through sexual humiliation and use of dogs.

--Fourth, attacks on individual psyche by exploiting fears and phobias.

--Fifth, hybrid methods such as water boarding.

--Sixth and most importantly, creative combinations of all these methods which otherwise might seem, individually, banal if not benign.

If you wish an analogy to make the curious exclusionary logic of this legislation perfectly clear, it would be as if US homicide law had taken a leaf from the popular board game “Clue” and defined murder as only those killings “done by Mrs. White, in the Conservatory, with the Candlestick”—thus, by its omissions, legalizing all murders done by more conventional means such as poison, pistols, rifles, knives, ropes, clubs, or bombs.

To test my critical, perhaps overly cynical assessment of this new law, let us ask whether this new law bans the most extreme of the CIA’s “enhanced” methods--water boarding. While the White House has refused comment, Vice President Cheney stated recently that using “a dunk in water” to extract information was “a no-brainer for me.” As the administration’s leader on interrogation policy, Cheney’s words make clear, despite White House denials, that water boarding is legal under the new law.

By its omissions, this legislation has effectively legalized the CIA’s right to use methods that the international community, embodied in the Red Cross and the UN Human Rights Committee, considers psychological torture. For the first time in the 200 years since 1791 when United States ratified the Fifth Amendment banning self-incrimination, Congress has passed a law allowing coerced testimony into US courts.

The implications of this Military Commissions Law are profound and will most certainly face legal challenge. Indeed, just a few weeks ago seven retired Federal judges challenged this law before the US Court of Appeals in Washington, DC, saying that it has “one specific and fundamental flaw”: i.e., it allows the military tribunals to accept evidence obtained by torture. But when this case reaches the Supreme Court, we cannot expect that a more conservative Roberts court will overturn this law with the same ringing rhetoric that we have seen in two recent landmark decisions, Rasul v. Bush and Hamdan v. Rumsfeld .

Conclusion

If this law stands, with its provisions for torture and drumhead justice, then the United States will suffer continuing damage to its moral leadership in the international community. Looking through a glass darkly into the future, Washington may try to return to that convenient contradiction that marked US policy during the Cold War: public compliance with human rights treaties and secret torture in contravention of those same diplomatic conventions.

Yet the world is no longer blind to these once-clandestine CIA methods and this attempt at secrecy will likely produce another scandal similar to Abu Ghraib. But next time our protestations of innocence will ring hollow and the damage to US prestige will be even greater.

(Mr. McCoy is J.R.W. Smail Professor of History at the University of Wisconsin-Madison and the author of A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror.)