Ken Guggenheim of Associated Press, 1/2/2005

U.S. Memo Broadens Definition of Torture
By Ken Guggenheim
The Associated Pre

Friday 31 December 2004

Washington - A prisoner doesn't have to undergo excruciating pain to be considered a victim of torture, the Justice Department now says. But it's not clear whether this revised, broader definition of torture will change the treatment of foreign detainees.

The White House says the new Justice Department memo defining torture doesn't reflect a change in policy because the administration has always abided by international laws that prohibit the mistreatment of detainees.

And critics of the administration, while welcoming the memo, dated Thursday, say policies that seemed to condone abuse of prisoners in Iraq or Guantnamo Bay, Cuba, have already done their damage.

"They've been down there for three years and they've squeezed everything out of these people, despite saying that they were treating them humanely," Mary Cheh, a constitutional law professor at George Washington University, said of those detained in Cuba.

The memo's biggest impact could be on next week's Senate confirmation hearings for chief White House counsel Alberto Gonzales, who was nominated by President Bush to replace John Ashcroft as attorney general.

Gonzales and other administration lawyers wrote memos that said the president's wartime powers superseded anti-torture laws and treaties. Human rights advocates say those memos effectively condoned abuse and set the stage for the mistreatment of inmates at the Abu Ghraib prison in Iraq and at Guantnamo Bay.

The Justice Department in June specifically disavowed an August 2002 memo to Gonzales that said cruel, inhumane and degrading acts may not be considered torture if they don't produce intense pain and suffering.

That memo was replaced by the Dec. 30 memo from Daniel Levin, acting chief of the Office of Legal Counsel. It opens by bluntly stating: "Torture is abhorrent both to American law and values and to international law."

The 17-page memo does not address two of the most controversial assertions in the first memo: that Bush, as commander in chief in wartime, had authority superseding anti-torture laws and that U.S. personnel had legal defenses against criminal liability in such cases.

Levin said those issues need not be considered because they "would be inconsistent with the president's unequivocal directive that United States personnel not engage in torture."

But the new document contradicts the previous version, saying torture need not be limited to pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Instead, the memo concludes that anti-torture laws passed by Congress equate torture with physical suffering "even if it does not involve severe physical pain" but still must be more than "mild and transitory." That can include mental suffering under certain circumstances, but it would not have to last for months or years, as the previous document said.

The White House said Friday that the United States has operated under the spirit of the Geneva Conventions, which prohibit violence, torture and humiliating treatment.

"It has been U.S. policy from the start to treat detainees humanely and in accordance with the Geneva Conventions or under the spirit of the conventions where they do not apply," said White House deputy press secretary Trent Duffy.

Walter Dellinger, who served as acting solicitor general in the Clinton administration, praised the memo's candor. "It expressly corrects what were seen as some of the sloppiest legal analyses of the earlier opinion," he said.

He predicted the opinion "will certainly induce significant caution in the use of interrogation techniques."

Douglas Kmiec, a former legal counsel to President Reagan and the first President Bush, said the new memo "removes any doubt that the president meant what he said" in rejecting torture. He praised Gonzales for having "the courage - even in the face of national embarrassment - to admit error, and correct it" without undermining the president's authority.

But Michael Ratner of the New York Center for Constitutional Rights, which represents some detainees, said the repudiation of the earlier memos makes it clear that Gonzales' nomination should be withdrawn.

"That first memo took us back to the Middle Ages and so it first makes you say, what are we doing putting this guy in as attorney general of the United States," he said.

The American Civil Liberties Union also called for a rigorous review to determine Gonzales' role in the earlier memos and his positions on the use of torture.

"The new memo raises more questions about Mr. Gonzales than it answers," said Anthony D. Romero, ACLU's executive director.

Fresh Details Emerge on Harsh Methods at Guantnamo
By Neil A. Lewi
The New York Time

Saturday 01 January 2005

Washington - Sometime after Mohamed al-Kahtani was imprisoned at Guantnamo 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 Guantnamo 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 Guantnamo 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 Guantnamo 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 Guantnamo 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 Guantnamo: 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 Guantnamo 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 Guantnamo 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 Guantnamo, 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 Guantnamo 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 Guantnamo 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 Guantnamo 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 Guantnamo 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 Guantnamo, 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 Guantnamo. Officials at the Washington office of the Red Cross, which makes periodic visits to each of the Guantnamo 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 Guantnamo.

Go to Original

U.S. Memo Broadens Definition of Torture
By Ken Guggenheim
The Associated Pre

Friday 31 December 2004

Washington - A prisoner doesn't have to undergo excruciating pain to be considered a victim of torture, the Justice Department now says. But it's not clear whether this revised, broader definition of torture will change the treatment of foreign detainees.

The White House says the new Justice Department memo defining torture doesn't reflect a change in policy because the administration has always abided by international laws that prohibit the mistreatment of detainees.

And critics of the administration, while welcoming the memo, dated Thursday, say policies that seemed to condone abuse of prisoners in Iraq or Guantnamo Bay, Cuba, have already done their damage.

"They've been down there for three years and they've squeezed everything out of these people, despite saying that they were treating them humanely," Mary Cheh, a constitutional law professor at George Washington University, said of those detained in Cuba.

The memo's biggest impact could be on next week's Senate confirmation hearings for chief White House counsel Alberto Gonzales, who was nominated by President Bush to replace John Ashcroft as attorney general.

Gonzales and other administration lawyers wrote memos that said the president's wartime powers superseded anti-torture laws and treaties. Human rights advocates say those memos effectively condoned abuse and set the stage for the mistreatment of inmates at the Abu Ghraib prison in Iraq and at Guantnamo Bay.

The Justice Department in June specifically disavowed an August 2002 memo to Gonzales that said cruel, inhumane and degrading acts may not be considered torture if they don't produce intense pain and suffering.

That memo was replaced by the Dec. 30 memo from Daniel Levin, acting chief of the Office of Legal Counsel. It opens by bluntly stating: "Torture is abhorrent both to American law and values and to international law."

The 17-page memo does not address two of the most controversial assertions in the first memo: that Bush, as commander in chief in wartime, had authority superseding anti-torture laws and that U.S. personnel had legal defenses against criminal liability in such cases.

Levin said those issues need not be considered because they "would be inconsistent with the president's unequivocal directive that United States personnel not engage in torture."

But the new document contradicts the previous version, saying torture need not be limited to pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Instead, the memo concludes that anti-torture laws passed by Congress equate torture with physical suffering "even if it does not involve severe physical pain" but still must be more than "mild and transitory." That can include mental suffering under certain circumstances, but it would not have to last for months or years, as the previous document said.

The White House said Friday that the United States has operated under the spirit of the Geneva Conventions, which prohibit violence, torture and humiliating treatment.

"It has been U.S. policy from the start to treat detainees humanely and in accordance with the Geneva Conventions or under the spirit of the conventions where they do not apply," said White House deputy press secretary Trent Duffy.

Walter Dellinger, who served as acting solicitor general in the Clinton administration, praised the memo's candor. "It expressly corrects what were seen as some of the sloppiest legal analyses of the earlier opinion," he said.

He predicted the opinion "will certainly induce significant caution in the use of interrogation techniques."

Douglas Kmiec, a former legal counsel to President Reagan and the first President Bush, said the new memo "removes any doubt that the president meant what he said" in rejecting torture. He praised Gonzales for having "the courage - even in the face of national embarrassment - to admit error, and correct it" without undermining the president's authority.

But Michael Ratner of the New York Center for Constitutional Rights, which represents some detainees, said the repudiation of the earlier memos makes it clear that Gonzales' nomination should be withdrawn.

"That first memo took us back to the Middle Ages and so it first makes you say, what are we doing putting this guy in as attorney general of the United States," he said.

The American Civil Liberties Union also called for a rigorous review to determine Gonzales' role in the earlier memos and his positions on the use of torture.

"The new memo raises more questions about Mr. Gonzales than it answers," said Anthony D. Romero, ACLU's executive director.