Dents in the 'Golden Shield': The CIA's Conflict of Interest in Classifying Medical Evidence of Torture

Last week, military commission attorneys for the defendants in the September 11 trial asked President Obama to declassify evidence of their clients' torture in CIA custody.
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Last week, military commission attorneys for the defendants in the September 11 trial asked President Obama to declassify evidence of their clients' torture in CIA custody. The attorneys argued that the government's censorship of the defendants' descriptions of their own treatment violates the Convention Against Torture, and makes it impossible to prepare a constitutionally adequate defense against a death sentence.

Similarly, last April, the Constitution Project's Task Force on Detainee Treatment (for which I was staff investigator) unanimously concluded that:

acts of torture, war crimes, and crimes against humanity are not legitimate "intelligence sources and methods" under the National Security Act, and evidence of these acts cannot be properly classified, unless their disclosure would endanger specific individuals or violate specific, valid, agreements with foreign countries.

The Task Force found that ongoing secrecy about torture prevented the United States from complying with its obligations under the Convention Against Torture. It called on the Executive Branch to declassify several key documents, including a 6000 page report on the CIA program by the Senate Select Committee on Intelligence (SSCI), and stop censoring former CIA detainees' descriptions of their own treatment.

The White House has not followed any of these recommendations. Instead, it has remained publicly neutral--which in practice means deferring entirely to the CIA. The CIA opposes the release of the SSCI report, and takes the position that the details of individual detainee's treatment in its custody are classified.

A few pieces of evidence about the medical condition of former CIA detainees recently emerged from the military commissions despite these restrictions. At a hearing last week, a lawyer for September 11 accused Ammar al-Baluchi said Baluchi's medical records showed he suffered a head injury in CIA custody that caused hallucinations, headaches, and memory loss. Khalid Sheikh Mohammed's attorney petitioned the court for permission to photograph scars on Mohammed's wrists and ankles that he allegedly sustained in CIA custody.

Ramzi Binalshibh has made repeated allegations of guards disrupting his sleep with noise and "vibrations." According to a military psychiatrist who treated Binalshibh, he "may be overreacting to sound stimulus due to past experiences." Binalshibh's actual diagnosis is redacted.

Months before, a military mental health board found that Abd al Rahim al-Nashiri, the accused mastermind of the U.S.S. Cole bombing, is competent to stand trial but suffers from posttraumatic stress disorder and depression. But the experiences that led to these symptoms are classified.

Even more secrecy surrounds the past treatment and current condition of former CIA detainees who are not facing military commissions charges.

When the CIA was seeking legal authorization for the black site program from the Office of Legal Counsel (OLC), the Agency assured OLC that:

The limited public information about former high-value CIA detainees' medical conditions contradict these claims, as do high value detainees' accounts of abuse to the Red Cross. The reliance on health professionals' monitoring of interrogations to ensure detainees' "safety" also conflicts with the most fundamental principles of medical ethics. The World Medical Association, American Medical Association, and United Nations prohibit clinicians from monitoring interrogation sessions where torturous or cruel methods are used, which they regard as a form of complicity in torture. As the Constitution Project Task Force found, "[h]ealth professionals cannot ethically condone any deliberate infliction of pain and suffering on detainees, even if it falls short of torture or cruel treatment."

Detainees' medical records and accounts of their own treatment would provide much more definitive proof that the CIA misstated the facts to the OLC, and that medical monitoring provided no real safeguard against torture. So would the release of the Senate Intelligence Committee's report on the CIA program. According to a document recently released by Senator Mark Udall of Colorado, the SSCI report contains a 128-page section on "discrepancies between the factual record" and information that the CIA provided to OLC.

The CIA has responded that there was no evidence that accurate information "would have altered OLC's key judgments" about the legality of its interrogation methods. But OLC documents, particularly from 2004 onwards, repeatedly say that their legal advice about interrogation is "based on, and limited by" the CIA's factual assertions. Acting OLC head Steven Bradbury wrote in 2005 that the CIA's representations about medical monitoring were "essential" to his conclusion that the CIA techniques did not rise to the level of torture even when used in combination. Bradbury's opinions also gave great weight to the CIA's claims that "this program is largely responsible for preventing a subsequent attack on the United States," and quoted at length from CIA documents touting the program's successes. We now know that many of those claims were false, and many others are unsupported by the public record. According to Senators, the SSCI report proves far more conclusively that the CIA misrepresented the efficacy of "enhanced interrogation" to both Congress and the Department of Justice.

Former OLC head Jack Goldsmith has written that the CIA regarded the OLC memos as a "golden shield" against liability for brutal treatment of detainees. If the Senate report proves that the CIA's legal shield rested on a foundation of false factual claims by the same agency, it will weaken the CIA's legal defense of its treatment of prisoners. At this point, criminal investigations and prosecutions are a very remote risk--but disclosure would also greatly embarrass the individuals responsible and the CIA as a whole.

These are not valid justifications for secrecy, however. The Executive Order that governs classified information forbids agencies from keeping information classified in order to "conceal violations of law" or "prevent embarrassment to a person, organization, or agency." The White House needs to enforce this prohibition, enforce the Convention Against Torture, and finally let the truth come out.

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