Friday, August 28, 2009

Tortuous Presumptions

The recent release of the “CIA Inspector General’s Special Review of Counterterrorism Detention and Interrogation Activities, September 2001 to October 2003”—detailing once again the appalling torture techniques employed by U.S. interrogators in their attempt to get information from “the worst of the worst”—has been discussed by experts far more qualified than myself. One aspect of the report, however, especially as disclosed by former CIA analyst Ray McGovern (“Closing in on the Torturers,” Aug. 26, 2009,, struck me forcefully. It concerned the operating assumption among interrogators, in the absence of any evidence, that their Al-Qua’ida captives (called “high value detainees) must have had crucial information, and were refusing to give it up. Here is what the report says:

“According to a number of those interviewed for this Review, the Agency’s intelligence on Al-Qa’ida was limited prior to the CTC (Counterterrorist Center) Program. The Agency lacked adequate linguists or subject matter experts and had very little hard knowledge of what particular Al-Qa’ida leaders—who later became detainees—knew. This lack of knowledge led analysts to speculate about what a detainee ‘should know’…When a detainee did not respond to a question posed to him, the assumption at Headquarters was that the detainee was holding back and knew more; consequently, Headquarters recommended resumption of EITs [enhanced interrogation techniques].”

McGovern adds one more bit of data from the Review, and then a comment:

“Some participants in the Program, particularly field interrogators, judge that CTC assessments to the effect that detainees are withholding information are not always supported by an objective evaluation of available information and the evaluation of the interrogators but are too heavily based, instead, on presumptions of what the individual might or should know.”

And then comes McGovern’s comment:

“People were tortured on the basis of ‘presumptions.’ Nice.”

What struck me when I read this was how similar it sounded to the root rationale governing the arrest and detention of American civilians during World War II. The phrase then in vogue by the FBI, military intelligence, and the Alien Enemy Control Division of the Department of Justice, was “potentially dangerous.” This was the term that was used to justify first investigating and then preparing dossiers on thousands and thousands of Americans with roots in the three prospective enemy nations—Japan, Germany, and Italy—even before war broke out. These investigations were undertaken primarily by J. Edgar Hoover’s FBI, starting in 1936 after a meeting the Director had with President Franklin Roosevelt. By 1940, the individuals investigated—many of them targeted by informants—were placed on a Custodial Detention Index prepared by Hoover’s FBI. The term “custodial detention” clearly indicates that anyone on the list was automatically a candidate for arrest and detention in the event the United States entered the war, which it did on December 7, 1941. And on that date, and in subsequent months, thousands on the list (some 60,000 domestic arrests were made during the war) were arrested, detained, interrogated about their activities, and, if they could not “prove their innocence,” interned at Army-run camps for the duration of the war. Most were so-called “enemy aliens,” those immigrants who had been born in Italy, Japan or Germany and had not yet become U.S. citizens, but many were naturalized U.S. citizens with roots in those now-enemy nations.

It was in respect to the latter that the Department of Justice, under the direction of Attorney General Francis Biddle, in about 1943 looked into the reasoning behind the term “potentially dangerous,” and came to some stunning conclusions. It should be noted that both Biddle and his predecessor, Robert Jackson (later elevated to the Supreme Court) had expressed reservations about many such wartime assumptions earlier. Specifically, Jackson had warned about the casual use of the term “subversion” or “subversive activity” with regard to the spying then being done on Americans. Jackson maintained that subversion was a dangerous concept because there were “no definite standards to determine what constitutes a ‘subversive activity’, such as we have for murder or larceny.” The Attorney General expanded on this problem with more examples:

“Activities which seem benevolent or helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened thereby. Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive.”

That the Attorney General knew whereof he spoke could have been grimly attested to by one Italian immigrant and “enemy alien” named Federico Dellagatta. Dellagatta had been reported for making suspect statements—“irresponsible talk about the greatness of the Italian people and the Italian army”—while shining shoes in Providence RI’s Union Station He was arrested and detained by the FBI, judged no danger to the nation by his hearing board, and recommended for parole. But when his case was reviewed by the DOJ’s Alien Division, the term “subversive activity” came into play, with grim results for the bootblack. Here is what the reviewer said:

"In the opinion of this reviewer, subject’s persistent talk in praising and boasting of the greatness of the Italian people and of the Italian army while employed in a shoe shining shop constitutes downright subversive activity..” [emphasis added, ed.]

Because of his “subversive” talk, therefore, Dellagatta was interned. Francis Biddle, shortly afterward, weighed in on the related danger of sedition statutes, one of which had been included in the Alien Registration Act of 1940. The act made it a criminal offense for anyone to advocate overthrowing the Government of the U.S. or any state, or even to be “a member of an association which teaches, advises or encourages such an overthrow.” For Francis Biddle, then Solicitor General, such sedition statutes were too easily misused, and often conflicted with the bedrock First Amendment right to free speech. As he later wrote in his autobiography, In Brief Authority:

"History showed that sedition statutes—laws addressed to what men said—invariably had been used to prevent and punish criticism of the government, particularly in time of war. I believed them to be unnecessary and harmful."

When he became Attorney General, Biddle opposed many of the proposed measures demanded by the military (though to his everlasting shame, he cooperated in the internment of 110,000 Japanese, including 70,000 U.S. citizens), especially its Individual Exclusion Program aimed at naturalized citizens of German and Italian descent. Biddle actually refused to prosecute several who violated their exclusion orders. His real objections came in 1943, however, when he ordered his department to prepare a report on the Program. After examining and completely invalidating the entire rationale for removing individuals from allegedly vulnerable coastal zones, the report then attacks the concept of “potential dangerousness” as the basis for exclusion (and, by implication, for internment as well.) It notes, first, that “the concept of potential dangerousness itself contains the element of possibility.” Saying someone is “potentially dangerous,” that is, is equivalent to saying that someone “might possibly be a possible threat.” The report then concludes:

"Practically, the use of phrases such as this [i.e. ‘potentially dangerous’] suggests that those who use them hold the view that a subject of an exclusion case must be excluded unless it is clear that there is no reason to exclude him. This is analogous to saying that the burden of proof is on the excludee, although the excludee, of course, cannot meet the burden, since he is not advised of the charges against him."

Unfortunately, there were no Robert Jacksons or Francis Biddles in George W. Bush’s Department of Justice, or in his CIA. Where those two WWII Attorneys General understood and, for the most part, respected the law, the Constitutional protections afforded all persons in the United States (such as the right to know what one is charged with), and the presumption of innocence enshrined in English law since the 12th century, Bush’s political appointees did not. Therefore, it seemed perfectly natural to them and their underlings to make “presumptions” about what a detainee could be expected to know, and to torture him if he did not reveal what was expected. Of course, as lawyers, they were adept at coining novel names for such practices, names like Enhanced Interrogation Techniques. They were also adept—Yoo, Addington, Bybee, Gonzalez, on up to the President and Vice-President—at issuing diabolical directives to both define what torture was (or more often was NOT), and why those interrogators who employed it could not be liable for prosecution. As the Review notes:

"The OLC [Office of Legal Counsel, where Yoo and Bybee worked] determined that a violation of Section 2340 [of the torture statute,18 U.S. Legal Code] requires that the infliction of severe pain be the defendant’s “precise objective.” OLC also concluded that necessity or self-defense might justify interrogation methods that would otherwise violate section 2340A.

"OLC produced another legal opinion on 1 August 2002 at the request of CIA…The opinion concluded that use of EITs on Abu Zubaydah would not violate the torture statute because, among other things, Agency personnel: (1) would not specifically intend to inflict severe pain or suffering, and (2) would not in fact inflict severe pain or suffering."

So there you have it. Interrogators “presume” that a detainee knows more than he’s saying, and on that basis get permission to use “Enhanced Interrogation Techniques” like wall slamming, sleep and food deprivation, and waterboarding. Then, having done this—in Zubaydah’s case, using the waterboard over 180 times—they then say that legally ‘We didn’t intend to hurt the little fellow, nor did we even know it hurt or caused any suffering whatever; we only wanted information. The fact that people tend to emerge from these sessions gibbering like idiots may be due to the diabolical training they all get. And besides, the bosses insisted.’

Though torturing suspects based on a “presumption” of what they know is different from interning them, or excluding them from vast areas because of their “potential danger,” the entire policy forms a continuum which turns on the same idea. That idea seems to be that, regardless of the law, one can never take too many precautions, or be too squeamish about methods when confronting what one presumes to be a “potentially dangerous" or "potentially knowledgeable” population.

Lawrence DiStasi

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