Update, July 8: Response from Burr dated 6/21 and received via snail mail, and my response, submitted this evening through his website, are posted.
Update, July 24: Odd follow-up from Burr’s office, posted below.
SILENCE IS COMPLICITY
TO: President Barack Obama, U.S. Sen. Richard Burr, U.S. Sen. Kay Hagan, U.S. Rep. Howard Coble
FROM: Lex Alexander
DATE: 8 June 2010
RE: War crimes and crimes against humanity
Mr. President, Senators and Congressman:
It has been widely documented and reported that U.S. personnel have engaged in torture and other war crimes and crimes against humanity, and that U.S. medical and psychological personnel were complicit in these crimes.
The nonprofit, Nobel Peace Prize-winning group Physicians for Human Rights, after investigation and review of documents, now also has concluded that U.S. medical and psychological personnel working with and/or as part of the CIA took part in medical research and experimentation on human subjects in U.S. custody in violation of international law (pdf):
Investigation and analysis of US government documents by Physicians for Human Rights (PHR) provides evidence indicating that the Bush administration, in the period after Sept. 11 , conducted human research and experimentation on prisoners in US custody as part of this monitoring role. Health
professionals working for and on behalf of the CIA monitored the interrogations of detainees, collected and analyzed the results of those interrogations, and sought to derive generalizable inferences to be applied to subsequent interrogations. Such acts may be seen as the conduct of research and experimentation by health professionals on prisoners, which could violate accepted standards of medical ethics, as well as domestic and international law. These practices could, in some cases, constitute war crimes and crimes against humanity.
The knowledge obtained through this process appears to have been motivated by a need to justify and to shape future interrogation policy and procedure, as well as to justify and to shape the legal environment in which the interrogation program operated.
PHR analyzes three instances of apparent illegal and unethical human subject research for this report:
1. Medical personnel were required to monitor all waterboarding practices and collect detailed medical
information that was used to design, develop, and deploy subsequent waterboarding procedures;
2. Information on the effects of simultaneous versus sequential application of the interrogation techniques on detainees was collected and used to establish the policy for using tactics in combination. These data were gathered through an assessment of the presumed “susceptibility” of the subjects to severe pain;
3. Information collected by health professionals on the effects of sleep deprivation on detainees was used to establish the “enhanced” interrogation program’s (EIP) sleep deprivation policy.
The human subject research apparently served several purposes. It increased information on the physical and psychological impact of the CIA’s application of the “enhanced” interrogation techniques, which previously had been limited mostly to data from experiments using US military volunteers under very limited, simulated conditions of torture. It served to calibrate the level of pain experienced by detainees during interrogation, ostensibly to keep it from crossing the administration’s legal threshold of what it claimed constituted torture. It also served as an attempt to provide a basis for a legal defense against possible torture charges against those who carried out the interrogations, since medical monitoring would demonstrate, according to the Office of Legal Counsel memos, a lack of intent to cause harm to the subjects of interrogations.
Yet the Bush administration’s legal framework to protect CIA interrogators from violating US statutory and treaty obligations prohibiting torture effectively contravened well-established legal and ethical codes, that, had they been enforced, should have protected prisoners against human experimentation, and should have prevented the “enhanced” interrogation program from being initiated in the first place. There is no evidence that the Office of Legal Counsel ever assessed the lawfulness of the medical monitoring of torture, as it did with the use of the “enhanced” techniques themselves.
Accordingly, the group says that at 11 a.m. EDT tomorrow, it will announce the filing of a complaint with the U.S. Office of Human Research Protections, seeking a formal investigation into human experimentation on prisoners by the CIA.
Mr. President, Senators, Congressman: The evidence that U.S. personnel, up to and including the immediate past president of the United States, have committed or ordered war crimes and crimes against humanity is, I believe, incontrovertible. This report concludes that to that shameful list of crimes we also can add illegal experimentation on human beings, a crime we thought we put to rest more than 60 years ago in Nuremberg. Would to God that we had; the reasons why such policies, in addition to being crimes, are wrong are legion:
- They increase the risk that our own personnel will be tortured if taken captive.
- They place our personnel in other countries at increased legal risk: 22 CIA operatives and an Air Force colonel already have been convicted of kidnapping in an Italian court in connection with the “extraordinary rendition” of a terrorism suspect from Italy.
- They provide little or no actionable intelligence. In particular, despite their use, the mastermind of the Sept. 11, 2001, terrorist attacks against this country, Osama bin Laden, remains at large.
- They provide no evidence admissible in a court of law. Indeed, they undermine respect for the rule of law and the rule of law itself.
- They inevitably will be used in cases in which the victim’s guilt, or even knowledge of a crime, is at best questionable and at worst utterly absent.
- They encourage others to take up arms against our country, or to assist those who do — a fact al-Qaeda has publicly celebrated. As Gen. David H. Petraeus recently remarked, such abusive techniques are “nonbiodegradable. … The enemy continues to beat you with them like a stick.” Marine Gen. Douglas Stone, who commanded Iraqi detention operations under Gen. Petraeus, follows this phenomenon to its logical conclusion: “What if exactly what we’re doing in detention is exactly what the enemy wants? Is that not aiding and abetting the enemy?” — that is, meeting one of the Constitution’s two definitions of treason?
- They cause enormous damage not only to the victims but also to our personnel who carry them out. To so mistreat men and women who have sworn to die, if necessary, in defense of our country and Constitution is itself a moral crime of the highest order.
- They fly in the face of what we historically have proclaimed ourselves to be to the world: a free people under the rule of law. The Founding Fathers considered torture and rejected it in the face of an enemy no less savage than that we face today. We should do no less.
Mr. President, you have argued that it is better to look to the future than to look to the past. In fact, some of the most important lessons we have ever learned from the past make clear that we must look to the past once again.
Mr. President, legally, you have no choice. U.S. law, and international law by which the U.S. is bound and which is recognized under Article VI of the Constitution as the “supreme Law of the Land,” require our government to investigate allegations of war crimes and/or crimes against humanity committed by U.S. personnel. The oath each of you has taken — in some cases, repeatedly — to uphold the Constitution requires you to act in furtherance of this imperative. So, I would argue, do common sense, morality and, in the words of the Second Continental Congress, “a decent respect to the opinions of mankind.”
Indeed, I would argue (and have argued) that willful refusal to order an investigation constitutes the type of “high Crime and Misdemeanor” for which the Framers prescribed impeachment and removal from office as the remedy.
But you shouldn’t order an investigation merely because it is required. You also must do so because it is the right thing to do — and because a thorough investigation, with appropriate criminal consequences for those responsible, will do two things: 1) reinforce the rule of law, and 2) serve as the only effective deterrent to future such acts.
I therefore call upon you, President Obama, as the head of the executive branch, to “take Care that the Laws be faithfully executed” by directing the Attorney General to open a criminal investigation into these most recent findings and to earlier allegations of torture and other war crimes and crimes against humanity, an investigation that will ask who did what when on what presumed authority, who authorized it, who claimed it was legal and on what basis, an investigation that will follow the evidence wherever it leads, even if it leads to a former — or current — occupant of the Oval Office.
I call upon you, Congressman Coble, as a member of the House Judiciary Committee, to seek the formation of a special joint House/Senate committee comprising representatives from permanent committees with jurisdiction — including Armed Services, Foreign Affairs, Homeland Security, Judiciary, Oversight & Government Reform, and Intelligence in the House, and Armed Services, Foreign Relations, Homeland Security & Governmental Affairs, Judiciary, and Intelligence in the Senate — to investigate possible commissions of war crimes and crimes against humanity by U.S. officials (military or civilian) and contractors in violation of U.S. statutes and international law, and to refer findings to the Justice Department for criminal prosecution.
I further call upon you, Congressman Coble, to review evidence already in the record, as well as any and all evidence that might be discovered by the special joint committee, to seek a basis for impeachment proceedings against current and former office holders, and to introduce the appropriate articles of impeachment based on those findings. As a former federal prosecutor, and as one of those who voted to impeach a different president on the basis of a far more personal failing than those I allege, you cannot fail to understand the obligation the law imposes upon you here.
I call upon you, Senators Hagan and Burr, to join with Congressman Coble to create the special joint House/Senate committee described above and to carry out your constitutionally prescribed duties as jurors in any resulting impeachment trials without fear or favor.
I can think of many arguments against embarking on the course of action I seek, ranging from the serious problems already on government’s plate to fear that voters will reject this course of action. I acknowledge the weightiness of some (but not all) of these arguments. Ultimately, however, I reject them all.
I reject them because the law is clear and the obligations it imposes upon you unambiguous.
I reject them because the morality of allowing these crimes to stand would render us as a nation morally distinguishable only in scale, not in type, from that which we spent blood and treasure to destroy 65 years ago.
I reject them because to do less will only encourage more, and more extreme, crimes against humanity. Indeed, it already has begun to do so.
I therefore call upon you four, my own elected representatives, to do your legal and Constitutional duty, without regard for the political consequences, without hesitation, without apology, without excuse, and without delay.
Nothing less is at stake than protecting the very existence of America as a free nation under the rule of law.
With appreciation for the public service of each of you, I am,
* * *
June 10, 2010
Mr. Lex Alexander
3308 Cascade Drive
Greensboro, North Carolina 27410
Dear Mr. Alexander:
Thank you for taking the time to contact our office regarding interrogation methods approved and implemented during the Bush Administration. We appreciate hearing from you.
We oppose the use of torture for interrogation purposes. While it is unclear exactly what interrogation techniques were approved and utilized by the Bush Administration, recent reports of egregious circumstances have cast a cloud over efforts in the Global War on Terror-despite claims that the interrogations produced valuable information. Although there may have been political motives behind President Obama’s decision to release classified documents, which were cited in the reports, we are still very concerned this has undermined our ability to interrogate high value terror suspects.
That said, we support congressional review of our interrogation techniques but cannot support an open-ended investigation into those tasked with conducting interrogations, unless their conduct was illegal or exceeded the limitations of their authority. Also, we oppose the using of torture techniques for interrogations. Please feel free to contact our office if we may be of assistance in the future.
Member of Congress
* * *
I wrote back to Howard last night, June 12:
12 June 2010
Hon. J. Howard Coble
Thanks so much for your prompt response this week to my letter. Unfortunately, what it included in promptness, it lacked in satisfactory substance, let alone any sort of assurance that you are going to carry out your sworn duties under the Constitution and the law. So this is where I, to borrow one of your favorite phrases, have to rip your face off.
I guess I should point out that after 25 years in journalism, I’m not exactly used to writing my elected officials, so if there’s some kind of formal kabuki one is supposed to follow in these circumstances, I’m utterly unfamiliar with it. All I know is that this is not just the standard scenario in which constituent vents to representative, representative responds with mollifying quasi-form letter and all goes on as before. Don’t let the boyish good looks fool you: I’m old enough to have been around and paying attention during Watergate and Iran-Contra. Those were genuine constitutional crises. This is worse. And call me naive, but I expect my federal elected officials to treat it that way.
You wrote, “We oppose the use of torture for interrogation purposes.” I’m delighted to hear it, although I would hope you would oppose the use of torture, period, for any purpose whatsoever.
You wrote, “While it is unclear exactly what interrogation techniques were approved and utilized by the Bush Administration, recent reports of egregious circumstances have cast a cloud over efforts in the Global War on Terror-despite claims that the interrogations produced valuable information.” This sentence contains a couple of implied statements of fact that aren’t actually factual.
First, it is not at all unclear what interrogation techniques were approved and utilized by the Bush Administration, although we may not yet have the complete list. A wealth of documentation, including government documents brought to light under the Freedom of Information Act by the American Civil Liberties Union, military investigations, and the journalism of such investigators as Seymour Hersh, Jane Mayer and Scott Horton, have placed a good deal of information on this subject into the public domain. Moreover, President Bush has stated publicly on at least two occasions — an April 2008 interview with ABC News and again in a recent speech — that he directly ordered waterboarding, which is universally understood in legal circles to be torture, has been publicly condemned as such by the sitting attorney general, and for which America has prosecuted both its own soldiers and enemy soldiers in the past.
Second, “reports of egregious circumstances” are hardly “recent.” The torture and mistreatment of prisoners at Abu Ghraib became public knowledge in early 2004, although, as I noted at the time on my blog, attorneys for some Guantanamo detainees were saying publicly as early as October 2003 that their clients were being tortured.
Third, there is no information in the public record to document any claim that violent interrogations produced “valuable information.” It simply hasn’t happened, or am I sure the government, particularly under the Bush administration, would have hustled the evidence out into the light of day to defend its actions.
You go on to say, “Although there may have been political motives behind President Obama’s decision to release classified documents …” There may have been. So what? This issue long predates the release of those documents. Besides, classifying records to conceal evidence of a crime is, itself, a crime, so the question of whether political motives were behind the release is irrelevant.
In the bigger picture, torture is not a partisan issue. It is a crime under both U.S. statutes and treaties by which the U.S. is bound and which, according to the Constitution, make up part of the Supreme Law of the Land. Ordering torture is certainly the kind of “high crime and misdemeanor” envisioned by the Framers of the Constitution as an impeachable offense — even more so than the crimes for which the House was preparing to impeach Richard Milhous Nixon when he resigned and certainly more so than the crimes for which you voted to impeach President Clinton.
I and other opponents of torture have been criticized for calling for criminal investigations on the grounds that such calls are “criminalizing politics.” That argument gets things exactly backward: Dismissing such calls as “partisan politics” is politicizing a straightforward, if horrendous, crime.
Put another way, torture and related crimes are not partisan issues for me. Not only have I called for President Bush to be prosecuted for ordering torture, I also have called on multiple occasions for President Obama to be impeached for approving efforts to assassinate U.S. citizens without trial and for attempting to deny the habeas corpus rights of prisoners. The president is the nation’s chief law-enforcement officer; he must be held to at least as high a standard as everyone else, if not a higher one. If the ordering and carrying out of torture and other war crimes and crimes against humanity are not punished, then the U.S. differs only in degree, not in kind, from the regimes we spent so much blood and treasure to vanquish 65 years ago.
You express concern that the release of some government documents related to torture “has undermined our ability to interrogate high value terror suspects.” With all due respect, Howard, prove it. There is zero evidence that such tactics have yielded any actionable information, from high-value terror suspects or anyone else. Moreover, the interrogation experts are almost unanimous in saying that the best way to get useful information from a prisoner is to build rapport with him. They say that torture victims will say whatever they think their interrogators want to hear, whether or not it is true, to make the pain stop.
You write, “That said, we support congressional review of our interrogation techniques but cannot support an open-ended investigation into those tasked with conducting interrogations, unless their conduct was illegal or exceeded the limitations of their authority.” Howard, again, with all due respect, we’ve known each other for 22 years, and your reputation for straight shooting long predates my meeting you, so it is way too late in the day for you to start channeling Lewis B. Carroll.
As a former federal prosecutor, you know better than most that an investigation of torture, or any other significant crime, must be open-ended. It must start with the service members and CIA operatives and contractors who actually carried out the illegal orders, and it must follow those illegal orders up the chain of command. If an investigation is not open-ended, how will we know for sure whether the actions of “those tasked with conducting interrogations” — and those who gave those interrogators their orders — were crimes or not so that we can punish the guilty and exonerate the innocent? Besides, we already know where this investigation ends: the Oval Office. We have President Bush’s public admissions. All that remains is to documents the steps between his words, and the torturers’ actions. This won’t be an open-ended investigation; it will be a fill-in-the-gaps investigation.
You conclude your letter by asking me to contact your office if you may be of assistance in the future. Well, here I am, Howard, and the future is now. Look, no one enlists in the military expecting a day like Dec. 7 or 9/11, but everybody who enlists does so in the knowledge that that day may come and trains accordingly. Similarly, I don’t expect you or anyone else to enter congressional service expecting a constitutional crisis. But that is what we find ourselves with, and it’s the biggest one of my lifetime — and yours.
U.S. and international law require this country to investigate credible allegations of torture and other war crimes. Those credible allegations we have by the boxload. Congress cannot order the attorney general to investigate, as I understand it, but it can order him to appear and testify as to why he hasn’t, and if the president is obstructing justice, Congress has a remedy spelled out right in the Constitution. Yes, you may be of assistance: You can work to ensure that the Congress exercises its oversight responsibility with respect to investigating and punishing these crimes, and you can impeach and remove from office those senior executive-branch officials who fail to do their jobs. That’s the assistance I need. And I’m not just asking, I’m begging.
If you’re genuinely ignorant of how much information about these crimes is already in the public record, I can point you to two starting points: this timeline of torture-related events, and this collection of documents obtained from the U.S. government under the Freedom of Information Act. I can also point you to other sources of information.
I hope and trust that you will carry out your duties, and put pressure on the president and the attorney general to carry out theirs, with respect to these crimes. On the other hand, if you’re not serious about it, just say so rather than insulting my intelligence by suggesting that 1) these crimes haven’t happened and 2) you have no role to play even if they have. I’ve read the treaties, statutes and documents. In the contest between elected officials and my lyin’ eyes, my eyes win every time.
Please, Howard. Do the right thing.
With gratitude for your many years of public service, I remain,
* * *
Our nation’s government works best when its activities adhere to the principles of transparency and accountability. I am troubled whenever any of these principles are questioned, because it is essential that Americans have confidence in those who lead our country.
On January 22, 2009, President Obama issued an Executive Order instituting new requirements for interrogations. The Executive Order prohibits any individual in U.S. custody while in an armed conflict from being subjected to any interrogation technique not authorized by the U.S. Army Field Manual for Human Intelligence Collector Operation. The U.S. Army Field Manual gives instructions on a range of issues, such as the structure, planning and management of human intelligence operations, the debriefing of soldiers, and other battlefield intelligence analysis.
Regarding your concerns about torture, you may be interested to know about a bill that I have cosponsored called the Limitations on Interrogation Techniques Act of 20009 (S. 248). This legislation would prohibit the use of harsh interrogation techniques on detainees held in U.S. custody. S. 248 is currently awaiting further action by the Senate Select Committee on Intelligence.
I appreciate the thoughts you have raised with me. Please know that I take Congress’s oversight responsibilities very seriously. I believe we in Congress should be held accountable for our actions and continue to work towards making our government more transparent and open.
Thank you for your response. Unfortunately, lacking as it was in any sign that you intend to abide by your sworn constitutional duty, I must reject it as unsatisfactory, a dereliction of duty and an abrogation of your oath of office.
First, stop insulting my intelligence by relying on the Orwellian construction “harsh interrogation techniques.” Waterboarding is torture, period. It has been so recognized by U.S. law and practice — and, indeed, in common American discourse — for at least a century. And a lot of other things to which we have admitted are torture, too. If you doubt me, I suggest you undergo them. Moreover, Article I of the U.N. Convention Against Torture, to name just one law that governs U.S. treatment of prisoners, defines torture as
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Second, stop insulting my intelligence by claiming in Orwellian fashion a devotion to “the principles of transparency and accountability.” Between early 2005, when you took office, and January 20, 2009, when President Bush left office, you didn’t lift a finger to seek transparency and accountability from the Bush administration, on the issue of torture or anything else.
Third, stop insulting my intelligence by suggesting that President Obama’s executive order of January 22, 2009, requiring certain prisoners to be interrogated only under procedures authorized by the U.S. Army Field Manual, is in any way relevant to the issues I raised in my earlier letter. Dude, I can read my own writing. The order applies only tangentially to the larger question of how we interrogate prisoners of any description, whether or not in an armed conflict.
Fourth, you can stop insulting my intelligence by ignoring the questions raised by that very order — namely, what in pluperfect hell were we doing to prisoners before January 22, 2009, that made such an order necessary?
Fifth, you can stop insulting my intelligence by suggesting that S. 248, now before the Senate Select Committee on Intelligence, in any way addresses the issue I raised: the war crimes and crimes against humanity already committed, and possibly ongoing, that have yet to be investigated, prosecuted and punished.
Sixth, you can stop insulting my intelligence by suggesting that S. 248 is ever going to see the light of day. You and I both know that SSCI Chair Dianne Feinstein is as much of a pimp for torture as you are and that she has been at it even longer than you have.
Seventh, you can stop insulting my intelligence by ignoring the thoughts I have raised with you while saying you appreciate them.
Eighth, you can stop insulting my intelligence by claiming you believe members of Congress should be held accountable for your actions, because true accountability for your actions would require your immediate resignation from office on the grounds of dereliction of duty and violation of the oath of office to protect the Constitution.
You’ll notice I’ve referred many times in this letter to my intelligence. The sad part is that my intelligence isn’t especially formidable. I just want you to do your job. The really smart people are going to want you imprisoned as an accessory to war crimes.
Please, Senator, do the right thing, don’t just pretend like you’re doing it.
United States Citizen
* * *
UPDATE, 7/24/10: I had pretty much given up any hope of hearing anything else from any of the four. Then, late Friday afternoon, having finished work and errand running, having no particular need to go home right away and wanting to escape 100-degree heat, I repaired to the bar of a dining establishment near my house for a nice, cold Red Oak and copious amounts of ice water.
I’m sitting there at the bar midway through my second beer, playing with my phone, keeping an eye on Tropical Storm Bonnie on the overhead TV and generally minding my own business, when my phone rings. The calling number is in the 202 area code, but the prefix starts with “1,” which, in my limited experience, is an internal government line.
The caller was a woman purporting to be an aide in Richard Burr’s office. I did not take notes on the conversation because doing so would have required removing a hand from my beverage, but she said she was calling to ascertain that I existed and that I was the Lex Alexander who e-mailed the above e-mails to their office.
Yes, ma’am, I confirmed, I am he. I do exist. And I meant every word I wrote.
She said that the office “appreciates my position” — I think that was the phrase she used. I said something to the effect of, “Ma’am, thank you, but this is not a ‘position.’ This is not a matter of opinion. I’m talking about cold, hard facts and the resulting legal obligations Sen. Burr has incurred that I want and expect him to carry out in accordance with his sworn constitutional duty.”
I could just feel the “Oh, God, a live one” vibes coming back through the phone, although that may have been just microwave radiation. Out of the corner of my eye, I also saw one of the bartenders pull up short, even though I was trying to keep my voice down.
She asked whether I had anything to add. I said no, that I thought my e-mail had been self-explanatory, and I thanked her for getting in touch.
So, if I disappear anytime soon, that’s where I went.
And we’ll see what happens next.