By Scott Horton
Special to the Huffington Post
Deep among the documents released to the ACLU on Monday afternoon was a curious memo dated 30 December 2004 and directed to Dan Levin, then acting head of the Justice Department's Office of Legal Counsel. The fax cover sheet has a brief note, "Dan, a generic description of the process." The name of the sender, based at the CIA, has been obliterated. You can view the document here.
The document provides a step-by-step manual for extraordinary renditions.
The process starts with "capture shock." The detainee is subject to a medical examination prior to his flight. During the flight, the detainee is securely shackled, and is deprived of sight and sound through the use of blindfolds, earmuffs and hoods.
The detainee is "in the complete control of Americans." The detainee is stripped naked and shaved. A "series of photographs are taken of the HVD while nude." A medical officer and a psychologist play key roles in the process (though their professional ethics rules would prohibit such conduct.)
All of these practices are carefully engineered to facilitate the interrogation process. Nudity, sleep deprivation and dietary manipulation are used as standard preparatory steps. It then details the standard "corrective techniques:" these are a series of physical assaults labeled with innocuous titles like insult slap, abdominal slap, facial hold and attention grasp. "Coercive techniques" used include: walling (slamming a prisoner's head against the wall, with some protective measures to avoid severe injuries), water dousing, the use of the stress position (known to the inquisition as the strapado, to the Germans in World War II as Pfahlbinden), wall standing (referred to by the NKVD and KGB as stoika) and cramped confinement. Because of substantial redactions, it seems unlikely that this list is complete.
None of this information is surprising. In fact it all tallies perfectly with the description of the renditions program that can be derived from the report prepared by the International Committee of the Red Cross, which used the appropriate legal designation for these techniques: "torture."
But this is an historical document, right? President Barack Obama shut down the black sites and the extraordinary renditions program immediately after taking office, right? Well, not entirely. Consider the recent rendition of a Lebanese businessman accused of petty contract fraud, Raymond Azar. The first stage of these guidelines was followed with precision. He was seized in Afghanistan by U.S. Justice Department operatives. They claim they had the approval of the Afghan government. The Afghan government disagrees, saying it has no record of ever having permitted the "snatch" of Azar.
According to papers filed by his lawyers, Azar was presented with "capture shock," stripped naked, subjected to a body cavity search for "health reasons," was shackled, subjected to hypothermia and sleep deprivation, and then was transported in a Gulfstream with the requisite hood, blindfold and earmuffs.
When pressed on this in court, the Justice Department claimed it was only following "standard procedures." The CIA memo shows that this claim is accurate: it was following standard procedures for extraordinary renditions, which were approved in a series of now-rescinded memoranda prepared by the Justice Department's Office of Legal Counsel. The Justice Department also claimed, in papers filed with the court, that the extraordinary measures were taken out of concern for the safety and security of the prisoners and the government agents involved. But on this point, the Justice Department is now revealed as being guilty of what at a minimum would be called a "failure of the duty of candor" to the court.
The 2004 CIA memo delivered to the Justice Department explaining these procedures makes very explicit that the techniques employed have little if anything to do with the safety and security of the personnel involved. They explain the real function these techniques: "To persuade High-Value Detainees (HVDs) to provide threat information and terrorist intelligence in a timely manner, to allow the US Government to identify and disrupt terrorist plots."
The preparatory measures, such as capture shock, nudity, body cavity search, sleep deprivation and manipulation of nutrition are designed to put the prisoner in a position in which he can be effectively interrogated. They are geared to breaking down psychological resistance and making the prisoner pliable. Not every technique designed to wear down resistance and make a prisoner more willing to talk is, of course, "torture." But in fact these techniques are highly coercive and have been held to be torture.
Moreover, in the Azar case, the Justice Department agents used these techniques in precisely this fashion, moving to aggressive interrogation immediately after applying the preparatory measures. Azar even claims that one agent brandished a photo of his family taken from his wallet and threatened that he would never see them again--something Azar interpreted as a threat against the safety of his family. The credibility of this account is boosted by the release this week of a 2004 CIA inspector general's report, which documented numerous cases in which similar threats were made.
After Azar's allegations of torture became public, Justice Department prosecutors rushed to snatch a plea bargain deal with Azar, clearly motivated by a desire to put an end to that issue. But whatever deal was struck with Azar should not let the government avoid the question of accountability for what was done in this case. That should start with an examination of the Justice Department's failure to candidly disclose to the court that the rendition techniques they applied to Azar were part of an effort to coerce a confession were explicitly engineered for that purpose. In sentencing Azar, the court will have to start with the recognition that the Justice Department began, overstepping the lawful constraints on its authority, to mete out punishment to him from the moment they seized him in Kabul.
But the broader question is for the new panel that the Obama White House has set up to oversee renditions and interrogations policy: Why are procedures designed to secure intelligence from violent terrorists being used on businessmen involved in petty contract fraud cases? If this was a conscious decision, it urgently requires a public justification.
Scott Horton is a contributing editor at Harper's Magazine, where he writes on law and national security issues, and an adjunct professor at Columbia Law School, where he teaches international private law and the law of armed conflict. A life-long human rights advocate, Scott served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. He is a co-founder of the American University in Central Asia, where he currently serves as a trustee. Scott recently led a number of studies of issues associated with the conduct of the war on terror, including the introduction of highly coercive interrogation techniques and the program of extraordinary renditions for the New York City Bar Association, where he has chaired several committees, including, most recently, the Committee on International Law. He is also an associate of the Harriman Institute at Columbia University, a member of the board of the National Institute of Military Justice, Center on Law and Security of NYU Law School, the EurasiaGroup and the American Branch of the International Law Association and a member of the Council on Foreign Relations. He co-authored a recent study on legal accountability for private military contractors, Private Security Contractors at War. He appeared at an expert witness for the House Judiciary Committee three times in the past two years testifying on the legal status of private military contractors and the program of extraordinary renditions and also testified as an expert on renditions issue before an investigatory commission of the European Parliament.