Archive for the ‘Torture’ Category
An interesting development is reported in Lawfare by Robert Loeb and Emma Kohse:
It looks like the DOJ is going to invoke the state secrets privilege after all in the latest CIA torture suit brought by former detainees, marking the first time that the Trump administration will use this powerful legal tool. But in an interesting variation on the typical post-9/11 state secrets cases, this time it is the defendants rather than the plaintiffs who seek to introduce information that the government alleges may harm national security. In a response filed Wednesday to the defendants’ motion to compel depositions of “two purported CIA witnesses,” the DOJ indicated its intention to assert the privilege in opposition to this motion and one other motion to compel the testimony of a CIA witness. The DOJ states that to either confirm or deny the three alleged witnesses’ roles in the detention and interrogation program “would itself disclose classified information.” The formal claim of privilege, which will be filed by March 8, must come from the head of the department that has control over the matter—likely CIA director Mike Pompeo.
The defendants in this case are former CIA contractors James Mitchell and John “Bruce” Jessen, whose role in designing the now-infamous enhanced interrogation program used in black site CIA prisons overseas was detailed in the declassified Executive Summary of the CIA’s Detention and Interrogation Program (SSCI Report). In 2015, the ACLU brought suit under the Alien Tort Statute against Mitchell and Jessen on behalf of Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Gul Rahman (who died in CIA custody), alleging that the two contractors are “directly liable” for acts of torture, non-consensual human experimentation, and war crimes perpetrated against the three men during their time in custody. (For a more complete picture, see our earlier case coverage here and here.)
Under the state secrets doctrine, the U.S. government can seek to exclude evidence from any civil trial by asserting that legal proceedings on the topic risk disclosing sensitive information and pose a threat to national security. Judges may attempt to verify the legitimacy of such assertions through in camera proceedings, but many defer to the executive branch’s judgment on what constitutes a national security secret. Though the exclusion of evidence on national security grounds does not necessarily mandate outright dismissal, in practice, claims focused on sensitive topics like counterterrorism or surveillance frequently don’t survive the invocation of state secrets.
Notably, prior challenges to the legality of CIA interrogation techniques have been thrown out after the government asserted its state secrets privilege, even when the United States was not itself a defendant in the case. This time, the DOJ did not seek to dismiss the case in its initial stages, likely in recognition of the sheer volume of relevant information already in the public domain: In addition to the SSCI Report, other CIA documents on the interrogation and rendition program were released in response to a FOIA suit brought by the ACLU in 2016. Instead, the government joined the suit as an interested party to protect classified information, opposing many of Mitchell and Jessen’s attempts to access additional CIA documents and depose CIA personnel.
Mitchell calls the SSRI Report “misleading,” and claims that he needs additional classified information to prepare a defense. If the court agrees that the excluded information is essential to trying the case, it’s possible that the state secrets privilege could prove fatal to the suit. However, that outcome seems unlikely at this point, particularly in light of the fact that the DOJ is not asking for dismissal.
The Obama administration’s forbearance on asserting the state secrets privilege in Salim v. Mitchell has been the subject of much discussion. After President Bush had been roundly criticized for what some called abuse of the privilege, President Obama’s Attorney General Eric Holder instituted new policy to limit its use in litigation, but critics saw more of the same until this case.
Even before Donald Trump took office, some speculated that his administration might change the legal strategy by invoking the state secrets privilege either to avoid releasing requested information in discovery, or to avoid the litigation altogether. This first use by the Trump administration appears to be relatively narrow, and may represent nothing more than a response to the specific depositions requested by Mitchell and Jessen. In other words, the Obama (or Clinton) administration may have responded identically to these specific motions to compel testimony, using privilege to prevent the release of critical national security information.
Still, it’s worth underscoring that . . .
Jane Mayer writes in the New Yorker:
In an interview with his biographer Michael D’Antonio, Donald Trump explained that although he received a medical deferment rather than serving in the war in Vietnam, “I always felt that I was in the military.” This was, as D’Antonio reported in “Never Enough: Donald Trump and the Pursuit of Success,” because he spent his high-school years at a military-themed boarding school, not far from West Point.
Last Saturday, President Trump trumpeted his military expertise during a visit to the C.I.A.’s headquarters, in Langley, Virginia, where he praised his nominee to direct the C.I.A., Michael Pompeo, for being first in his class at West Point. Then he digressed, noting, “I know a lot about West Point. . . . Trust me, I’m, like, a smart person.”
One difference between serving in the military and being a pretend soldier at the New York Military Academy, where Trump proudly led mock drills in snappy faux military uniforms, is that, in the real thing, officers are drilled not just in marching formations but also in the laws of war. These include the Geneva Conventions and the Convention Against Torture, which impose absolute, unconditional bans on torture and other forms of cruel and inhumane treatment of enemy combatants, categorizing such conduct, under any and all circumstances, as a war crime.
In an interview with ABC’s David Muir, made available on Wednesday, Trump gave a cursory nod to those laws. Asked if he wanted U.S. forces to use waterboarding, the President said that he would listen to his advisers, but that he wanted to do everything “within the bounds of what you’re allowed to do legally” to “fight fire with fire.” He told Muir, “I have spoken, as recently as twenty-four hours ago, with people at the highest level of intelligence, and I asked them the question: Does it work? Does torture work? And the answer was yes, absolutely.” He added, with emphasis, “Do I feel it works? Absolutely I feel it works.”
The interview came on the same day that several news organizations published a draft executive order that, if signed, would command the Trump Administration to review the possibility of reintroducing C.I.A.-run “black site” detention campsfor terror suspects and the use of brutal interrogation techniques. These practices were used during the early years of the War on Terror, but were shut down after the Supreme Court declared them subject to prosecution. At the daily White House press briefing on Wednesday, Trump’s press secretary, Sean Spicer, described the draft as “not a White House document.” Still, it was circulating through high levels of the government, and President Trump’s sentiments were clear.
As any military expert could tell Trump, torture only increases the danger that soldiers face. It produces false intelligence, increases the risk that captured soldiers will themselves be tortured, and undermines discipline and moral authority. This is a lesson that George Washington knew well. As a general in the Revolutionary War, he vowed that, unlike the British, who tortured their captives, this new country would distinguish itself by its humanity toward enemy combatants. Washington’s order proved not just moral but also practical. As David Hackett Fischer wrote in “Washington’s Crossing,” his Pulitzer Prize-winning history, Washington’s superior treatment of enemy captives fomented desertion among British and Hessian soldiers, and bolstered the American soldiers’ morale.
Washington’s enlightened orders formed the backbone of U.S. military policy until the War on Terror. America didn’t always live up to these ideals, but it nonetheless valued them, and enshrined them in law. The original copies of the Geneva Conventions are kept in a safe at the State Department, signed by, among others, Winston Churchill, whose bust Trump reportedly has chosen to give a place of honor in his Oval Office.
The horrifying consequences of abandoning the high road are catalogued in the Senate Select Committee on Intelligence’s 2014 report on the C.I.A.’s use of torture during the Bush era. Daniel J. Jones, the congressional staff member who was the lead author of the Senate report, told me that, should Trump choose to read it, he would see that “it clearly details how the C.I.A. internally came to the conclusion that their interrogation program was ineffective—and that the C.I.A. should not be operating detention sites.”
As Trump readily admits, he doesn’t feel he has time to read anything lengthy, which would seem to preclude his absorption of the five-hundred-page declassified summary of the Senate report, not to mention the six-thousand-seven-hundred-page classified original. It doesn’t help, either, that the Obama Administration, in deference to the wishes of the C.I.A., declined to hold anyone in the intelligence community accountable for the Bush-era torture program. Obama instead chose to, as he put it, “turn the page.” Unfortunately, that has made it all too easy for a new Administration to look to the old playbook. These missteps, Jones said, “are just dumbfounding.”
Luckily, if Trump were to sign the draft executive order, the decision on whether to return to the brutal detention and interrogation techniques that former Vice-President Cheney called “the dark side” would not be made by the President alone. . .
Torture does not work. In addition, it’s cruel and inhumane, illegal, immoral, unethical, and degrading to the torturer who is also harmed and shamed, developing a defensive numbness for life or PTSD. What sensible person would want to bring torture back?
When a government goes bad, it can go really bad. Azadeh Moaveni reports in the New Yorker:
In 1988, when Hamida Ajengui was a teen-ager, she decided to stop getting her hair blown out and to cover it with a head scarf instead. Her parents, observant Muslims, were as accepting of her head scarf as they had been of her uncovered head. To be religious in Tunisia, after all, was as mainstream as speaking French—and it was often during their teens that girls decided it was time to put on the hijab. But when Ajengui showed up at school, the principal said that she couldn’t attend while covered. Surely, she thought, the country’s new President, Zine el-Abidine Ben Ali, who had taken power in 1987, must have been unaware of this injustice: even though the government had historically suppressed religion, Ben Ali had promised more freedoms. Ajengui gathered a group of girlfriends and boarded a tram to visit the Presidential palace, in Carthage, to tell him. They were stopped by the police and turned back. When they tried to make the journey again, they were arrested.
The experience sealed Ajengui’s resolve to wear her veil. She dropped out of school, focussing instead on religious classes and charity work. She often brought grocery money to the wives of political prisoners jailed for their Islamist beliefs. This led to more arrests, and then to torture and years of intermittent imprisonment. In detention, police would hang Ajengui upside down, naked, for hours. During interrogations, they threatened to sodomize her with a baton and once stripped her of her clothing in front of twenty men. Another time, she was locked in a room with a drunk man, who threw her against the wall and groped her. On her wedding day, security agents swarmed the reception hall, filling the space with officers instead of guests. They confiscated the musicians’ instruments, blocked her mother from attending, and ripped the head scarves off her female relatives’ heads. “My wedding was like a funeral,” Ajengui said.
For nearly sixty years, until the 2011 uprising that unseated President Ben Ali, the Tunisian government made torture and intimidation a systematic part of its rule. A police state that was also stridently secular, modelled after the French aversion to religiosity in public life, the dictatorship largely targeted Islamists or religious activists. Ajengui, who is now forty-seven, was one of eleven women and men who two weekends ago described the abuse that they had suffered, during the second hearing of the state’s Truth and Dignity Commission, which is the centerpiece of a transitional-justice law passed by the democratic government that emerged after the revolution. Broadcast live on prime-time television and widely watched, the hearings have been timed to coincide with the anniversary of the death of Mohamed Bouazizi, the Tunisian fruit seller whose self-immolation sparked the Jasmine Revolution, which spread to become the Arab Spring. The proceedings, unprecedented in the Arab world for their scope, are tasked with examining a wide variety of crimes, from extrajudicial killings to torture to corruption, and intended as a public reckoning that will help both state institutions and society recover.
They are also a refutation of Tunisia’s reputation as an Arab success story, which owes less to any significant progress than to the country having avoided civil war or a descent into even nastier autocracy and chaos. This bright view, garlanded with a Nobel Peace Prize that went to a coalition of Tunisian civil-society groups, in 2015, has mostly fallen away. As George Packer reported in March, a spate of terror attacks that took place months before the Nobel Prize was announced virtually ended European tourism and weakened the country’s long-ailing economy. Acts of violence by Tunisians abroad have changed the country’s image further. Earlier this December, a twenty-four-year-old Tunisian man named Anis Amri allegedly drove a truck through an outdoor Christmas market in Berlin, killing twelve people. Tunisia has also sent the highest numbers of recruits, both men and women, to fight with the Islamic State, and the prospect of fighters returning home from Syria has left Tunisians vulnerable to the notion that the old regime was better at providing security than the new. Following two political assassinations in 2013, a political party that includes former regime officials won parliamentary elections, putting a number of politicians associated with past abuses back in power.
Outside the conference center where the hearings were being held, an ambulance waited on standby in case any of the participants fainted from the stress of testifying. Inside, young women dressed in soft linen and fluorescent lace hijabs sat with men wearing velvet pinstriped blazers and fake leather jackets. When Ajengui described being threatened with the baton de violeur, or steel baton, a woman broke down and rushed out of the room, the clacking of her heels breaking the room’s silence. Sodomy as a form of torture has featured in other victims’ testimony, as well. Tunisia is unique today for being governed by a sizable number of new politicians who are torture survivors, now members of the Islamist Ennahdha Party, and who find themselves serving alongside colleagues who, by virtue of having served under the old regime, were complicit in their abuse. When secular politicians nod together at an Ennahdha lawmaker across the room and whisper “Fanta bottle,” they are making a joke about sodomy. Last year, artists organised an installation in downtown Tunis called “The National Museum of the State Security System.” The exhibit included a row of glass soda bottles, symbolic of those upon which detainees had been forced to sit.
Sihem Bensedrine, the president of the Truth and Dignity Commission, is a former opposition journalist and human-rights activist who spent time in prison, in 2001. Bensedrine, who is sixty-six, is small-boned and wears demure suits and pearls, but her character is direct and sometimes fiery (in political circles her nickname is the Lioness). She has faced intense criticism, much of it personal, for her leadership, and she has been accused of everything from being overly fond of limousines to being a prostitute. A replica of one of Picasso’s paintings from his surrealist period—a woman with a splintered face—hangs on a wall in her office near a framed verse from the Koran. On the morning of the second day of hearings, she was scrambling to prepare an additional person to give testimony. One of the women who had been scheduled to speak, a mother of two teen-agers, had just dropped out. “I’m sorry I can’t come tonight,” she told Bensedrine over the phone. “I am destroying my children.”
“We told them from the beginning they have the right to change their mind,” Bensedrine said, shrugging. “They’ve pushed the trauma down somewhere so deep, and we can’t force them to pull it out if they are not ready.”
Anyone can submit charges of torture or corruption to the commission. Of the 62,326 charges received so far, the commission has studied around eleven thousand. . .
For a quick orientation, read the Wikipedia article on incarceration in the United States. Martin Garbus reviews a book in the NY Review of Books:
Hell Is a Very Small Place: Voices from Solitary Confinement
edited by Jean Casella, James Ridgeway, and Sarah Shourd, with an afterword by Juan E. Méndez
New Press, 226 pp., $25.95
If you look inside a solitary confinement cell such as the ones I have visited in New York’s Sing Sing prison, you’ll see a gray-walled, eight-by-eight-foot room with a concrete slab bed; it’s underground, more like a tomb than a cell. The light is always on. Usually there aren’t any windows, but there is a toilet (no toilet seat or paper) and a shower.
The solitary cell is home to a single prisoner, twenty-three or twenty-four hours a day; the extreme isolation and sensory deprivation imposed by the cell can last for days, months, years, or decades on end. Someone who visits a solitary cell might not notice the feces or the urine that leaks from the cells above, down the walls into a puddle on the floor. He or she would not be shown prisoners mutilating themselves or fighting guards or one another to the death, or men in their underwear, or naked, shackled by their hands to the bottom of bunks, deprived of books, paper, radio, pens, or pencils. I have represented a range of defendants in constitutional and criminal cases during the last fifty years, and my clients who have spent time in solitary consistently testify to having witnessed, or been subjected to, these abuses.
They describe being shackled to their bunks by their feet and hands, and moved from place to place like animals. They report being fed slop and also left without food in a state of extreme hunger. They tell me that hooded guards, armed with tasers and bats, in body armor and riot gear, extract prisoners from their cells and leave them lying on the floor, beaten, bruised, and unexamined by doctors. Once you see—and smell—a solitary cell, you will never forget it.
I first saw a solitary cell at Sing Sing in 1963, when I went to visit Fred Wood, an inmate there. (Mr. Wood, who had the odd distinction of being the next-to-last man executed by New York State, laughed as he sat down in the electric chair and said, “You are about to witness the damaging effect electricity has on wood.”) Since then, I have had many occasions to visit clients and talk with inmates in solitary cells in federal and state facilities throughout the country. Each of the many solitary cells I saw was an abomination.
Hell Is a Very Small Place: Voices from Solitary Confinement is a collection of seventeen essays by men and women who have been held in solitary confinement in American federal and state prisons. They were collected by Jean Casella, James Ridgeway, Sarah Shourd, and Solitary Watch, a national organization that opposes solitary confinement. For readers who have no sense of the nature of the punishment that is exacted in their name, this collection offers an unforgettable look at the peculiar horrors and humiliations involved in solitary confinement.
America’s prisons hold 2,193,000 people. That is more than the number of people who live in Manhattan. It is also more than the total number of prisoners in either Russia or China, the countries with the second- and third-highest prison populations. The United States shares with North Korea the distinction of having the world’s highest incarceration rate. With 5 percent of the world’s population, America houses 25 percent of the world’s prisoners.
Approximately 400,000 people in our prison population move in and out of solitary, and many of America’s over two million prisoners know they can be put in solitary even if they are jailed for the most minor offenses. Between 80,000 and 120,000 men and women are held in solitary confinement every day. Every federal and state prison has solitary cells. More than 100,000 American children inhabit prisons in which solitary is considered a standard management practice. Men, women, and children can be put there for years on end, solely at the whim of a prison guard. There is no legal process that gets them there and no legal process that can prevent them from being put there.
“Cruel” and “unusual” are likely two of the first words most inmates—and most readers—would use to describe solitary confinement. But no United States court has ever held that solitary confinement violates the Eighth Amendment and its proscription against cruel and unusual punishment. It seems that few American judges have ever been inside a solitary confinement cell.
Hell Is a Very Small Place provides a harrowing guided tour of some of the country’s solitary units. The essays in the collection were written by inmates, some of whom have been confined for months to decades in solitary, as well as by one lawyer, two professors and legal activists, and two psychiatrists, including Stuart Grassian, a former Harvard Medical School professor who writes about the psychiatric effects of solitary confinement. Together these essays are both a condemnation of our prison system and an indictment of America. It is difficult to read this book without feeling shame.
The first American experiment in solitary confinement sprang from utopian ideals. In their introduction, Casella and Ridgeway observe that there are many historical accounts of people confined alone in towers and dungeons, and that, before the nineteenth century, many different societies used solitary as a way to torture and punish miscreants. But, they argue persuasively, “solitary confinement as a self-conscious, organized, and widespread prison practice” is a uniquely American creation.
The “penitentiary system” was introduced in the late eighteenth century in Philadelphia and was intended by its Protestant founders to quietly house “penitents” for as long as necessary in solitary so that they could have ample time to read the Bible, reflect, and change. Proud penitentiary supporters invited and encouraged important visitors from abroad to observe them; Casella and Ridgeway describe the appalled findings of Alexis de Tocqueville, Gustave de Beaumont, and Charles Dickens, who were among those who came to visit.
In their 1833 treatise on US penitentiaries, Tocqueville and Beaumont wrote that, from the very beginning, the whole system had gone horribly, murderously wrong:
The convicts had been submitted to complete isolation; but this absolute solitude, if nothing interrupts it, is beyond the strength of man; it destroys the criminal without intermission and without pity; it does not reform, it kills.
Charles Dickens visited the Eastern State Penitentiary in Pennsylvania in 1842, and the editors call him “one of the earliest—and still one of the most eloquent—critics of solitary confinement.” He described the penitents there as men “buried alive.” . . .
Alex Emmons reports in The Intercept:
One of the many alarming facts that came to light with the release of the executive summary of the Senate Torture Report in 2014 was that the Justice Department’s Bureau of Prisons had sent a “delegation of several officers” to Afghanistan to conduct an assessment an infamous CIA detention site and concluded the CIA “did not mistreat the detainees.”
Senate investigators found that the bureau officers visited a detention site codenamed Cobalt north of Kabul in November 2002. That site — also known as the Salt Pit — has become infamous for the brutal torture inflicted on detainees there, including rectal exams conducted with “excessive force.” According to Senate investigators, the CIA’s own employees described the facility as “a dungeon,” where detainees “cowered” as interrogators opened the door and “looked like a dog that had been kenneled.”
In April, the ACLU filed suit to obtain documents related to the visit, which the Bureau of Prisons initially claimed did not exist.
The bureau has now turned over several emails mentioning the visit — along with a written declaration by a senior Bureau of Prisons lawyer explaining the attempted cover-up. That declaration states that the officers were tasked orally, so that there was no record of their travel, and that the CIA forbade the two officers from producing records of or about the visit.
In a newly released 2011 email, one of the officers tells a supervisor that “we were not even allowed to speak with a supervisor about what was going on.”
The declaration says that due to the lack of records, searches for documents based on keywords like “CIA, Afghanistan, and COBALT,” initially turned up no documents. After the ACLU filed suit, the bureau conducted a more thorough search, identifying the individuals who traveled to Afghanistan, and searching their communications.
The declaration confirms that two Bureau of Prisons officers traveled to “an international location,” in November 2002 to provide “basic correctional practices training” to the CIA. . .
Later in the report:
While BOP officers toured the facility, interrogators tortured detainee Gul Rahman to death. A CIA team dragged Rahman out of his cell, beat him, immersed him in cold water, and put him in an isolation cell, where he died of hypothermia overnight.
According to the Senate report, the Bureau of Prison officers remarked that “there is nothing like this in the Federal Bureau of Prisons,” but nonetheless concluded that the prison was “sanitary,” and “not inhumane.”
M. Gregg Bloche reports in the NY Times:
President-elect Donald J. Trump on Tuesday expressed reservations about the use of torture. But he did not disavow the practice, or his promise to bring it back. And if he does, C.I.A. doctors may be America’s last defense against a return to savagery. But they’ll need to break sharply with what they did the last time around.
Buried in a trove of documents released last summer is the revelation that C.I.A. physicians played a central role in designing the agency’s post-Sept. 11 torture program. The documents, declassified in response to an American Civil Liberties Union lawsuit, show in chilling detail how C.I.A. medicine lost its moral moorings. It’s long been known that doctors attended torture as monitors. What’s new is their role as its engineers.
The documents include previously redacted language from a directive by the C.I.A.’s Office of Medical Services telling physicians at clandestine interrogation sites to flout medical ethics by lying to detainees and collaborating in abuse. This language also reveals that doctors helped to design a waterboarding method more brutal than what even lawyers for the George W. Bush administration allowed.
The directive counsels that clinical care “not undermine the anxiety and dislocation that the various interrogation techniques are designed to foster.” It instructs physicians not to “appear overly attentive” and to confound patients’ expectations via deceit. Recommended tactics include doing clinical exams while pretending to be guards, changing medication schedules to disrupt detainees’ sense of time and hiding drugs in food.
It also outlines protocols for prolonged shackling in painful positions that would permit development of skin lesions and edema (swelling because of leakage of fluid from blood vessels) up to the knees. Sleep-deprivation protocols call for a balance between breaking detainees’ resistance and preserving their capacity to provide information.
If forced wakefulness “is intended to be one element in the process of demonstrating helplessness in an unpleasant environment,” the directive counsels, two-hour “naps” between days of sleeplessness are “sufficient.”
Previously redacted language also discloses the origin of the degrading practice of “rectal hydration,” first reported by the Senate Select Committee on Intelligence in 2014: The medical service advised that “individuals refusing adequate liquids” be given fluids forcibly, through a “rectal tube.”
Other language shows that C.I.A. physicians collaborated in waterboarding more terrifying and dangerous than what government lawyers permitted. The Justice Department allowed interrogators to simulate drowning for up to 40 seconds by using a wet cloth to block air flow through the nose and mouth. But according to the directive, the medical service determined that a good air seal “was not easily achieved by the wet cloth.” So it instead went along with pouring “up to several liters of water” onto captives’ faces.
“The resulting occlusion,” the directive said, “was primarily from water filling the nasopharynx, breathholding, and much less frequently the oropharynx being filled — rather than the ‘sealing’ effect of the saturated cloth.” The drowning experience, in other words, wasn’t simulated; it was real.
That C.I.A. interrogators actually employed this method is consistent with videotapes of waterboarding sessions. A 2004 review of these since-destroyed videos found that instead of using the wet-cloth technique, interrogators “continuously applied large volumes of water.” The review, by the C.I.A.’s inspector general, noted that this “differed” from what the Justice Department had authorized. The agency’s method, a psychologist-interrogator told the inspector general, was “more poignant and convincing.”
The medical service instructed physicians to manage waterboarding’s dangers by combining the practice with sleep deprivation and shackling of detainees in stressful positions; this, the service advised, could “prolong the period of moderate use of the waterboard by reducing the intensity of its early use.”
The service conceded in the recently released text that the abuse its doctors helped to plan put detainees at deadly risk. Inhalation of water, spasm of the larynx, hypothermia and lung and limb infections are among the hazards physicians were told to watch for.
The role of physicians included assessing the comparative efficacy of abusive methods. The medical service judged extended sleep deprivation “most effective” because of its “demonstrably cumulative” contribution toward “demonstrating helplessness in an unpleasant environment.” But it concluded that confinement in tiny boxes worked poorly since this offered “a respite from interrogation,” and it expressed skepticism about the effectiveness of waterboarding.
Some of the agency’s doctors challenged the torture program’s efficacy and questioned why the psychologists who created it served in conflicting roles as both its managers and evaluators. There were objections, as well, to the ethics of putting behavioral science to such brutal use. But the program’s advocates prevailed, and the medical service instructed its physicians accordingly. There have been no public indications that any refused to go along.
Unlike the contractor-psychologists who created the torture program and have faced public excoriation, the C.I.A. physicians who helped design it remain anonymous. . .
And the Obama administration established that torturing prisoners carries no penalty. Those who torture people at the government’s orders received decorations and promotions but no punishment or accountability
The belated discovery that physicians were directly involved in torturing prisoners and in devising ways to make the torture worse is exactly why there should have been a serious investigation rather than a cover-up, and the findings should have been shared with the public.
Beginning with George W. Bush after the 9/11 attacks, the Federal government has embraced tough (and sometimes illegal) security measures. Obama did not fix it. Charlie Savage reports in the NY Times:
As a presidential candidate, Donald J. Trump vowed to refill the cells of the Guantánamo Bay prison and said American terrorism suspects should be sent there for military prosecution. He called for targeting mosques for surveillance, escalating airstrikes aimed at terrorists and taking out their civilian family members, and bringing backwaterboarding and a “hell of a lot worse” — not only because “torture works,” but because even “if it doesn’t work, they deserve it anyway.”
It is hard to know how much of this stark vision for throwing off constraints on the exercise of national security power was merely tough campaign talk. But if the Trump administration follows through on such ideas, it will find some assistance in a surprising source: President Obama’s have-it-both-ways approach to curbing what he saw as overreaching in the war on terrorism.
Over and over, Mr. Obama has imposed limits on his use of such powers but has not closed the door on them — a flexible approach premised on the idea that he and his successors could be trusted to use them prudently. Mr. Trump can now sweep away those limits and open the throttle on policies that Mr. Obama endorsed as lawful and legitimate for sparing use, like targeted killings in drone strikes and the use of indefinite detention and military tribunals for terrorism suspects.
Two decisions by Mr. Obama in 2009 set the tone for his leave-it-on-the-table approach. They involved whether to keep indefinite wartime detentions without trial and to continue using military commission prosecutions — if not at the Guantánamo prison, which he had resolved to close, then at a replacement wartime prison.
Told that several dozen detainees could not be tried for any crime but would be particularly risky to release, and that a handful might be prosecutable only under the looser rules governing evidence in a military commission, Mr. Obama decided that the responsible policy was to keep both the tribunals and the indefinite detentions available.
The president refused to use either power on newly captured terrorism suspects, instead prosecuting them in civilian court. But by leaving the options open, he helped normalize them and left them on a firmer legal basis.
Mr. Obama followed a similar course with several national security practices that became controversial during his first term. After his use of drones to kill terrorism suspects away from war zones led to mounting concerns over civilian casualties and other matters, he issued a “presidential policy guidance” in May 2013 that set stricter limits. They included a requirement that the target pose a threat to Americans — not just to American interests — and that there would be near certainty of no bystander deaths.
But the Obama administration also successfully fought in court to establishthat judges would not review the legality of such killing operations, even if an American citizen was the target. Mr. Trump — who has said he would “bomb the hell out of ISIS,” beyond what Mr. Obama is doing, and go after civilian relatives of terrorists, prevailing over any military commanders who balked — could scrap the internal limits while invoking those precedents to shield his acts from judicial review.
Similarly, after a surge of criminal prosecutions against people who leaked secret information to the news media and bipartisan outrage at aggressive investigative tactics targeting journalists, the Obama Justice Department issued new guidelines for leak investigations intended to make it harder for investigators to subpoena reporters’ testimony or phone records. It also decided not to force a reporter for The New York Times to testify in a leak trial or face prison for contempt.
But the Obama administration also successfully fought in court to establish that the First Amendment offers no protection to journalists whom the executive branch chooses to subpoena to testify against confidential sources. Mr. Trump, who has proposed changing libel laws to make it easier to sue news organizations, could abandon the Obama-era internal restraints and invoke the Obama-era court precedent to adopt more aggressive policies in leak investigations.
Geoffrey R. Stone, a University of Chicago law professor who is a friend and adviser to Mr. Obama, defended the president’s approach. He said that after 2010, when Republicans took over the House, internal executive branch restraints were the only option because Congress was not going to enact legislation limiting national security powers.
He also said that even if Mr. Obama had gotten rid of indefinite detention or military tribunals, Mr. Trump could have brought them back.
“Short of legislation that restricts things, there is not much a president could do in these matters to restrain a successor,” Professor Stone said.
Still, Bruce Ackerman, a Yale University law professor who is helping with a lawsuit alleging that Mr. Obama is waging an illegal war against the Islamic State because Congress never specifically authorized it, said Mr. Obama had contributed to the growth of executive powers that Mr. Trump would inherit. That includes “the fundamental institutional legacy” of relying on executive branch lawyers to produce creative legal opinions clearing the way for preferred policies, Professor Ackerman said.
The two areas where Mr. Obama broke most cleanly with Bush-era practices were torture and the indefinite military detention of Americans and other terrorism suspects arrested on domestic soil. Mr. Obama issued an executive order requiring interrogators to use only techniques approved in the Army Field Manual, and he later signed a bill codifying that rule into statute. He also resisted repeated calls by Republicans to put newly captured terrorism suspects arrested in the United States into Guantánamo-style military detention.
But the Obama administration also ruled out criminal investigations into Bush-era officials for involvement in torture practices that the Justice Department had blessed as legal under a sweeping theory that the commander in chief could not be bound by anti-torture laws.
And the Obama administration fought lawsuits brought by Jose Padilla, an American terrorism suspect who had been imprisoned and interrogated as an “enemy combatant.” The administration successfully argued that courts should dismiss the litigation without ruling on whether his treatment had been lawful, preventing any clear repudiation of the Bush-era legal theory.
A spokesman for Mr. Obama’s National Security Council declined to comment. But Gregory B. Craig, who was Mr. Obama’s first White House counsel and participated in early policy deliberations about what to do about Guantánamo-style policies, said that in 2009, the president “was not thinking about 10 years out, but about 10 days out.” And he especially did not want to send signals to Republicans that he was a zealot or out for revenge, Mr. Craig said.
Mr. Obama, Mr. Craig said, “was thinking about working with Republicans and developing postpartisan relations on Guantánamo-related national security issues, not about what was going to happen a decade later.” . . .
So Trump has ready access to a big drawer of sharp tools to use in various ways.