Unjustifiable Means

by Mark Fallon

  The APA responded that Risen “touches on an ugly period in our nation’s history, one in which longstanding principles of human rights were violated,” adding that “his conclusions about the APA are largely based on innuendo and one-sided reporting.” In response to continued criticism over psychologists’ involvement in torture, the APA commissioned an independent review called the Hoffman Report.

  The Hoffman report found that APA leadership actively colluded with government torture programs, often by simply ignoring what was happening. The report states, “APA intentionally decided not to make inquiries into or express concern regarding abuses that were occurring, thus effectively hiding its head in the sand.”

  For example, when one APA member tried to file an ethics complaint against James Mitchell in 2005, “the complainant contacted the Ethics Office several times prior to filing her complaint against Mitchell and that each time an Ethics Office staff member discouraged her from filing the complaint.” When she persisted and her complaint was finally accepted, an Ethics Office staff member found there were three James Mitchells who were APA members and no further steps were taken. Mitchell resigned from the APA nine months later while the complaint was still pending. In recent years, the APA also declined to take action against XXXX XXXX.

  The publicity generated by the New York Times coverage of the Hoffman Report finally broke down the APA’s resistance. On July 14, 2015, the board of directors announced the retirement of the APA chief executive officer and deputy CEO, as well as their executive director for communications. Other officials were removed or fired, and others retired or resigned.

  The APA membership demanded further action. At its August 7, 2015, annual conference in Toronto, the Council of Representatives voted overwhelmingly to prohibit psychologists from participating in national security interrogations. The vote was 157–1. The one vote against was from Larry James, the psychologist who had served at Guantanamo and Abu Ghraib.

  None of the psychologists involved in the development of enhanced interrogation techniques have had their membership revoked or received other disciplinary action.

  ALBERTO MORA

  General counsel of the navy

  Mora led a three-year campaign at the highest levels of the Department of Defense, attempting to prevent the acceptance of any legal justification for abusive interrogation tactics. Mora could not stop all torture, although he prevented al-Qahtani and other Guantanamo inmates from being waterboarded.

  Mora left the government in 2006, the same year he was awarded the John F. Kennedy Profile in Courage Award. He has served as international counsel to Walmart and vice president, general counsel, and secretary to Mars, Inc.

  Mora is currently a fellow at the Carr Center for Human Rights at Harvard University’s Kennedy School. One of his projects there has been an extensive analysis of the cost and consequence of torture. The study disclosed that US and Iraqi officials had concluded that more than 90 percent of the suicide bombings in Iraq between 2003 and 2005 were from foreign fighters. It was clear that the treatment of detainees at Guantanamo Bay and Abu Ghraib helped attract foreign fighters to the battle. These suicide attacks killed thousands of people, both Americans and Iraqis. When American contractor Nick Berg was beheaded by Abu Musab al-Zarqawi in 2004, Al Qaeda in Iraq claimed it was in retaliation for Abu Ghraib.

  DONALD RUMSFELD

  Secretary of defense

  Rumsfeld was an enthusiastic and active proponent of the development of torture as a policy within the Department of Defense. Rumsfeld hand-picked both General Dunlavey and Miller to run the Guantanamo Battle Lab. He later chose General Miller to travel to Abu Ghraib to encourage illegal and abusive interrogation and detention policies. Rumsfeld then selected Miller to take over detention and interrogation at Abu Ghraib, just as the media began to break stories about illegal abuse and torture in the prison. Rumsfeld resigned as secretary of defense in 2006, amid criticism for his military planning.

  Rumsfeld has been the subject of repeated lawsuits in the United States based on prisoner abuse during his time as secretary of defense. In 2007 a federal judge dismissed a suit brought by the ACLU, claiming Rumsfeld could not be “held personally responsible for actions taken in connection with his government job.”

  In December 2014 the European Center for Constitutional and Human Rights filed criminal complaints in Germany accusing Donald Rumsfeld of war crimes. The complaint included the case of Khalid El-Masri, a German citizen who was captured by CIA agents in 2004 due to mistaken identity and tortured at a secret prison in Afghanistan.

  Rumsfeld is currently retired and lives in New Mexico.

  WILLIAM “JIM” HAYNES

  General counsel to the Department of Defense

  Haynes worked closely with Rumsfeld as a principal legal architect of the use of torture in interrogation, including at Guantanamo. Haynes resigned from the DOD in March 2008 to become chief corporate counsel to Chevron. On October 12, 2016, the European Center for Constitutional and Human Rights and the New York–based Center for Constitutional Rights urged a French judge to subpoena Haynes based on a complaint of torture, abuse, and arbitrary detention of two former Guantanamo detainees.

  Haynes is currently general counsel and executive vice president at SIGA Technologies, Inc.

  KYLE “DUSTY” FOGGO

  Executive director, CIA

  On September 29, 2008, “Dusty” Foggo pleaded guilty to felony corruption charges in federal court. XX XXX XXXXXXX XXXXXXXX XX XXX XXXXXX XXX XXXXXXX XX XXXXXX XX XXXXXXXX XXXXXXX XXXXXXXXXXX XXXXX XXXXXXX XXX XXXXXXXX XX XXXXXX XXXXXX XXX XXX XXX XXXXX XXXXXXX, in which the CIA tortured detainees. Court papers disclosed a record of misconduct on Foggo’s part stretching over twenty years. He has never been held accountable for those actions.

  GEORGE TENET

  Director, CIA

  CIA director during the adoption and spread of EITs as well as a vocal proponent of the war in Iraq, Tenet announced his retirement as director on June 3, 2004, just as the controversy over the flawed intelligence leading up to the war with Iraq was heating up. That December, President Bush presented Tenet with America’s highest civilian award, the Presidential Medal of Freedom. Tenet today is managing director of Allen & Company, an investment bank.

  SENATE SELECT COMMITTEE ON INTELLIGENCE REPORT

  Also known as the “Torture Report”

  The full report of the Senate Select Committee on Intelligence, totaling more than 6,500 pages, is still highly classified and has never been made public. It was, however, sent to the White House, CIA, DOJ, DOD, State Department, and to the office of the director of national intelligence, and its conclusion is now in the public record: “This and future Administrations should use this Study to guide future programs, correct past mistakes, increase oversight of CIA representations to policymakers, and ensure coercive interrogation practices are not used by our government again.” Nonetheless, senior executives in many of the agencies to which the report was sent, including the FBI, ordered their personnel not to open or read it.

  When Republican senator Richard Burr replaced Democrat Dianne Feinstein as chairman of the SSCI after the 2014 elections, he went further, demanding agencies return all copies of the full SSCI report to the Senate, claiming they never had a right to see the report in the first place.

  Amid concern all copies of the full report will be destroyed, President Obama announced he will have a copy of the report preserved in his presidential library, guaranteeing the survival of at least one copy. However, the report will remain classified until at least 2028.

  ISLAMIC STATE OF IRAQ AND THE LEVANT (ISIS, ISIL, OR DAESH)

  Terrorist organization

  Beyond extreme and regressive religious orthodoxy, Daesh has also claimed to be motivated by the US invasion of Iraq and torture of Muslims. The precursor group to Daesh rose to prominence during the Iraqi insurgency following the US invasion of Iraq. Countless reports since have chronicled the barbaric treatment of prisoners
in Daesh custody, including dressing them in orange jumpsuits—replicating Guantanamo detainees—and waterboarding only the US and UK hostages to emphasize the US treatment of Islamic prisoners. Abu Bakr al-Baghdadi, the Daesh cult’s emir, met many of Daesh’s future leaders in detention at the US prison Camp Bucca in southern Iraq. The New York Times describes the prisons as “virtual terrorist universities: The hardened radicals were the professors, the other detainees were the students.” Thousands of former detainees around the world share at some level a deep sympathy with what al-Baghdadi reportedly told his captors as he was leaving Camp Bucca: “I’ll see you in New York.”

  GTMO

  American naval base that became infamous globally for prisoner abuse and torture

  As early as May 2006, George W. Bush started talking about the need to close Gitmo. “I very much would like to end Guantanamo; I very much would like to get people to court,” he told reporters. One of Barack Obama’s first acts as president was to pledge to close Gitmo. On January 22, 2009, his second day in office, Obama issued Executive Order (EO) 13492, directing that the detention facility be shuttered “as soon as practicable, and no less than 1 year from the date of this order.”

  The president returned to the subject in his January 20, 2015, State of the Union Address: “We have a profound commitment to justice—so it makes no sense to spend three million dollars per prisoner to keep open a prison that the world condemns and terrorists use to recruit. Since I’ve been president, we’ve worked responsibly to cut the population of GTMO in half. Now it’s time to finish the job. And I will not relent in my determination to shut it down. It’s not who we are.”

  Colin Powell has said closing Gitmo is “in the best interest of the nation.” Retired generals, admirals, and national security professionals have publicly advocated for closure, yet the prison remains open as I write, home to 41 remaining detainees, being held now at a per-person cost of nearly $11 million annually. Worse, the war criminals who fostered and practiced torture there have yet to be held accountable for their actions.I

  Miami Herald journalist Carol Rosenberg, who has covered Gitmo since the arrival of the first detainees, has dubbed those who remain “forever prisoners.” As one who was there at the beginning, I’m in full accord. It does seem like it was forever ago when Gitmo first opened, and some days it seems like Gitmo might go on forever more. But I also believe we have to think about “forever prisoners” in a broader sense, to include ourselves, our national values, and the undeclared war that shows no sign of ending.

  War crimes were committed at Gitmo—that’s indisputable. According to the SSCI Torture Report, the “evidence is overwhelming and incontrovertible,” yet the conspiracy of silence continues, just as it continued for so long in the Nixon administration after the Watergate break-in burst into the headlines. Cover-ups, compliant White House counsels, stonewalling, using the CIA to achieve political objectives, unlawful acts, the use of special units, and the need for a special prosecutor to get the truth out—it all sounds so very familiar, and maybe it should. Two of the principal architects of our torture policy post-9/11 learned their craft during Watergate at Richard Nixon’s knees: Dick Cheney, who first came to the White House in 1970 as a staffer to the director of the office of economic development during Nixon’s first term and would go on to become George W. Bush’s vice president; and the director Cheney first worked under in the White House, Donald Rumsfeld, defense secretary to Cheney’s VP when EITs were first born.

  Maybe given that history, it was inevitable the CIA’s fabricated claims of torture success at their black sites would combine with flawed legal analysis, ambitious commanders, and convenient psychologists to turn Gitmo into a symbol of torture, injustice, and oppression that still haunts not just America but all of the West. But I was there at the creation, and like a lot of others, I couldn’t stop it all from happening. That thought will haunt me for a long time to come.

  * * *

  I. The interim report of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, for which I served as a consultant, properly extends accountability to those who witnessed detainee torture and remained mute on the subject. Specifically, the report states:

  “The obligation to report mistreatment should be enshrined in national law, with appropriate sanctions for non-reporting and protections for those who report. The duty to report should be extended to violations of other standards and safeguards, including the prohibition against compelling detainees to confess, incriminate themselves or testify against others, and subjecting them to coercion, threats or practices impairing their judgment or decision-making capacities.

  “All violations, including of the right to be properly informed of one ’s rights and to legal assistance, must be impartially investigated upon complaint and subject to appropriate sanctions. The protocol should consider prospective remedies and sanctions, such as disciplinary or administrative action and obligation to undertake additional training, for breaches of standards and attendant procedural safeguards designed to prevent the use of coercive interviewing practices.”

  CHAPTER 14

  * * *

  A DISASTER FORETOLD

  I wrote earlier that the series of legal decisions that would ultimately be used to justify torture unfolded like an avalanche witnessed in slow motion. You could clearly see it coming, you could wave your arms and yell, but ultimately there wasn’t a damn thing you could do to stop it.

  I wouldn’t see the series of contracts that James Mitchell and Bruce Jessen had signed with the CIA for almost a decade and a half after they came into existence, but when I finally did, I realized how easily, almost casually, all this had begun.

  Here, for example, are snippets from an August 21, 2002, modification to an existing CIA contract with Mitchell that had been set to expire on August 31. The modification extended the contract to the end of the year:

  “Sponsor [CIA] has a need to identify reliable and valid methods for conducting cross-cultural psychological assessments. . . . Sponsor has a need to identify current state of the art behavioral sciences research and methods of influencing attitudes, beliefs, and behavior across cultures.”

  The “objective” of the project under contract would be to “identify and describe the reliability and validity of existing methods and strategies for conducting cross-cultural (including non-English speaking, non-Western cultures) psychological assessments under dynamic conditions, with limited access to the individual being assessed, short turn around [sic] time for completion of the assessment and high degrees of ambiguity and uncertainty stemming from conflicting or incomplete data, biased presentation and multiple information sources.”

  To that end, Mitchell was to:

  • “Identify the current state of behavioral science on theories and methods for influencing attitudes, beliefs, motivation and behavior;

  • “Describe the reliability and validity of existing techniques, methods and strategies for motivating and influencing human behavior, particularly those which can be used for motivating and influencing individuals from non-Western cultures;

  • And “Identify and describe the reliability and validity of existing methods and strategies for determining which method of influence is most likely to be effective for a given individual.”

  It’s all so bland, so technical, so filled with the language of contracts and the catch words and phrases of psychology. But the reality of this bloodless document, of these “cross-cultural . . . psychological assessments under dynamic conditions,” was the sweaty cells in which exhausted, haunted, brown-skinned men lived like animals, some for more than a decade. The reality was interrogators throwing Mohammed al-Qahtani a mock birthday party and then forcing him to watch a puppet show depicting him having sex with Osama bin Laden. The reality was dirt farmers from Afghanistan rounded up wholesale and shipped to the American Azkaban in the sparkling Caribbean.

  Ultimately, Mitch
ell and later Jessen’s contracts would be renewed and added to because people, some guilty and some innocent, were being systematically destroyed in hidden spots around the world, and because too many other people who watched all this with personal distaste, even horror, saluted and marched on.

  By late October 2002, I had been exposed to one too many similar documents—legal opinions, meeting summations, written orders filled with antiseptic, almost Orwellian language for what I knew in my heart and through observation to be horrible and inhumane practices. After reading one of them—the minutes of a meeting I describe in chapter 7—I sent the following e-mail to XXX XXXXXXX, our senior legal advisor and the senior command staff at the Criminal Investigation Task Force. It reads in part:

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