NPR’s Nina Totenberg this morning had an excellent roundup on the issue, while The New York Times, The Washington Post and the Los Angeles Times all have sharply worded editorials today chastising Republicans such as Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee. Sessions has vowed to vote against cloture for the Hamilton nomination after years of haranguing Democrats for daring to block Republican judicial nominees.

Hamilton is a widely respected federal judge in Indiana who has the support of his home state’s Republican senator, Richard Lugar. But critics, who call him “the anti-Jesus pro-Allah judge”, don’t like that he ruled against allowing sectarian prayers as part of the official proceedings of the Indiana House of Representatives. They also don’t like that he struck down a law requiring women to have face-to-face counseling before being allowed to exercise their constitutional right to an abortion.

While it’s not surprising that some Republicans don’t like those rulings, that’s not supposed to be grounds for blocking a vote on the president’s nominee. No one is arguing that the Yale-educated, former Fulbright fellow who’s won the support of the American Bar Association isn’t qualified for the job. In contrast, Democrats allowed a vote on President George W. Bush’s nomination of Judge Jay Bybee to the Ninth Circuit Court of Appeals, even though as a Justice Department Lawyer Bybee approved memos authorizing the torture and abuse of detainees that even prominent Republicans have since disavowed and that sparked an ethical investigation into his conduct.

But in addition to Republican obstructionism, President Obama hasn’t exactly gone out on a limb to push his judicial nominations forward. Alliance for Justice has issued a report pointing out the paucity of judges nominated and confirmed by the Senate so far under Obama as compared to the first year of the previous administration. After Obama’s first ten months in office, only five judges had been confirmed by the Senate, 22 nominees remained pending and 97 vacancies were still open. During George W. Bush’s first year in office, the president had nominated 64 judges and won confirmation of 18 by mid-November. Meanwhile, Obama is operating with a strong majority of Democrats in the Senate, whereas Bush had to deal with a Democratic-controlled Senate in 2001.

Hamilton is likely to get a vote this week. Even so, the Obama administration still has a lot of catching up to do.

A federal judge in July said that without his statements given under torture, the government’s case against Jawad, who was around 12 years old when he was arrested for allegedly throwing a hand grenade at U.S. soldiers, was “riddled with holes” and based on wholly unreliable evidence. She ordered that he be freed.

Mark Magnier at the Los Angeles Times tracked down Jawad in Kabul, Afghanistan, where he found a 19-year-old struggling with mood swings as he tries to reconcile himself to having lost his adolescent and teen years to confinement and mistreatment in a U.S. prison. Jawad was one of many detainees who tried to commit suicide at Guantanamo.

Jawad tells Magnier that he now suffers from headaches, remains haunted by prison memories, and worries about those he left behind, who had become a sort of surrogate family. About 220 detainees are still at Guantanamo Bay, which may or may not be closed in January, as President Obama promised shortly after he took office.

Jawad reportedly asked Magnier to tell President Obama, the United Nations or anyone else who could do anything to help the prisoners who remain there. “People there are sick,” he told Magnier. “They should be treated. They should be freed.”

Although UNICEF and some other civil groups are trying to help Jawad get counseling, education and job training, neither the U.S. nor the Afghan government has provided Jawad with any assistance.

A Defense Department official told the L.A. Times that financial assistance for former Guantanamo detainees would cost too much, and “we don’t want to give them money to buy equipment that could come back to hurt us.”

Still, according to the recently released July 2007 memo from the Office of Legal Counsel, the technique was determined not to cause “serious physical pain or suffering” and not to violate the War Crimes Act. The War Crimes Act prohibits torture and “cruel and inhuman treatment.”

Illustration by: Matt Mahurin

A comparison of the inspector general report with legal memos released from the Office of Legal Counsel within the Justice Department, however, reveals that lawyers were so uncertain about how and whether sleep deprivation could be used legally that their advice to the CIA ranged from restricting its use to 48 continuous hours, to allowing it for 180 hours or more. And although the 2007 legal memo specifically mentions that the CIA said it might use the technique for 180 hours, the lawyers restricted their analysis, in footnote 7, to only the legality of its use for up to 96 hours. Meanwhile, the inspector general report discusses the contemplated use of sleep deprivation on Abu Zubaydah for up to 11 days at a time — or 264 hours straight.

None of the former interrogators, physicians, lawyers or government officials could explain to TWI exactly why the CIA and Justice Department lawyers changed the rules so sharply and frequently. A call to Jack Goldsmith, the Harvard Law Professor and director of the Office of Legal Counsel from 2003 to 2004 was not returned.

“How they go from 48 to 100 plus hours is anybody’s guess,” said Jack Cloonan, a former FBI special agent who worked in the Osama Bin Laden unit from 1996 to 2002. “I think that they were making the rules up as they went along,” he said, adding that “they outsourced a lot of this,” referring to the role, recently revealed by The New York Times, of Jim Mitchell and Bruce Jessen, two businessmen-psychologists who developed the interrogation procedures for the CIA but had no interrogation experience themselves.

But the experts on sleep deprivation all appear to agree – and the literature on the subject is remarkably consistent – that sleep deprivation is physically and mentally harmful, and largely ineffective at producing useful information. Still, it’s tempting for government officials desperate to get detainees to talk.

“It will elicit information, that’s true,” said Cloonan. “People will talk. But in point of fact the substance is what separates what works and what doesn’t. Did they provide actionable intelligence, and could you verify what was being told?” asks Cloonan. “There’s a big diff between compliance — giving information to stop what they’re being subjected to — and real cooperation, where they’re giving useful information.”

Scientists, physicians and interrogators all say that because sleep deprivation causes extreme confusion and even psychosis, it’s impossible to know if what the detainee is telling interrogators is true or not.

“Sleep deprivation has been extensively studied,” said Dr. Steven Miles, professor of medicine at the University of Minnesota Medical School and faculty member of its Center for Bioethics, as well as the author of the book, “Oath Betrayed: America’s Torture Doctors.” “It will cause people to speak. It does not produce reliable intelligence. It impairs the ability to concentrate in a way that allows the interrogatee to assemble coherent narratives. So it’s counterproductive in terms of information solicitation.”

A December 2006 report from the Intelligence Science Board of the National Defense Intelligence College says that sleep deprivation is associated with, among other things, “increased suggestibility,” adding: “On this last point it is worth noting that suggestibility increases specifically under conditions simulating an interrogation. At least one study has found that “the effect on suggestibility of one or two night’s sleep loss is comparable to the difference in suggestibility between true and false confessors.”

That’s such a basic fact for interrogators that in the book, “Introduction to Forensic Psychology,” by Curt and Anne Bartol, the glossary lists “Coerced-compliant false confessions” as “Admissions of guilt most likely to occur after prolonged and intense interrogation experiences, especially in situations where sleep deprivation is a feature. The suspect, in desperation to avoid further discomfort, admits to the crime even knowing that he or she is innocent.”

As Tom Parker, a former British Intelligence agent, now Amnesty International’s Policy Director for Terrorism, Counterterrorism and Human Rights explained: “Sleep deprivation was never designed as an interview tool. It was used by the KGB and its precursors as a way to break people down to give false confessions. These techniques are not about getting people to tell the truth, they’re about breaking people down to kill their spirit.”

The justification for the technique originated with the idea of learned helplessness, based on studies conducted decades ago on dogs.

“They took dogs, tied them in a cage and shocked them,” explained Miles. “They showed that the dogs would act to resist or escape, unless the dogs learned there was nothing they could do to resist. Then they would just lie there and take it.”

The theory, explained Miles, is that “when used with other techniques it will induce dependence on the interrogator, which will cause the person to comply.” But all the research done on this from around the world reveals that “this technique simply does not gather intelligence.”

Sleep deprivation is always part of a package: as described in CIA inspector general report, prisoners were shackled, semi-starved, put in diapers and forced to stand that way. Their hands were cuffed along the wall close to their chins, according to Department of Justice memos. If they nodded off and stopped standing, the chains would pull at their wrists, waking them up.

Andrea Northwood, director of client services at the Center for Victims of Torture in Minneapolis, recently told The Associated Press that her organization considers 96 hours of sleep deprivation to be torture.

Sen. John McCain (R-Ariz.), who was tortured in Vietnam, has also said that prolonged sleep deprivation is torture, and recently denied the claim in the CIA inspector general report that he was among several members of Congress who approved its use.

Menachem Begin, the Israeli prime minister from 1977-83, tortured by the KGB as a young man, famously described sleep deprivation in his book, White Nights:

“In the head of the interrogated prisoner, a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep… Anyone who has experienced this desire knows that not even hunger and thirst are comparable with it,” he wrote. “I came across prisoners who signed what they were ordered to sign, only to get what the interrogator promised them” — time to sleep.

Although the technique was prohibited by President Obama, some worry it could be revived in the future because it at least gets people to talk, and it’s generally perceived as less offensive than waterboarding, head-slamming or forced nudity. “Sleep deprivation may be seen as a tempting technique to restore,” wrote reporter Greg Miller in the Los Angeles Times recently.

In justifying the use of sleep deprivation in a 2005 memo, Justice Department lawyers argued that it was okay for CIA interrogators to keep terror suspects awake for seven and a half days straight — because “even very extended sleep deprivation does not cause physical pain.” They relied for that claim on the work of university researchers who found that people who were deprived of sleep for just one night had an increased sensitivity to certain types of pain. Justice Department memos dated May 10, 2005 cited this study to support the conclusion that severe sleep deprivation of up to 180 consecutive hours might cause some increased pain but not “severe physical pain” — even when used together with slaps, stress positions, water dousing and “walling” — slamming a detainee’s head repeatedly against a flexible wall.

“Because sleep deprivation appears to cause at most only relatively moderate decreases in pain tolerance, the use of these techniques in combination with extended sleep deprivation would not be expected to cause severe physical pain,” wrote Steven Bradbury, a principal deputy assistant attorney general in the Office of Legal Counsel, who signed the memos. (Bradbury has since left the department and works at a private law firm in Washington. He did not return calls for comment.)

But those same academic researchers have since called the Justice Department’s use of their work “nonsense.” “To claim that 180 hours [of sleep deprivation] is safe in these respects, is nonsense.” Dr. James Horne, with the Loughborough University Sleep Research Centre, told the blog Obsidian Wings. “Prolonged stress with sleep deprivation will lead to a physiological exhaustion of the body’s defense mechanisms, physical collapse, and with the potential for various ensuing illnesses.”

In their studies, the doctors explained, the subjects were well-fed and could play video games and watch television. Detainees under interrogation, on the other hand, were often semi-starved and chained into place, not even allowed to go to the bathroom.

“In a manner, it’s like giving a drug to a patient: if you administer it in small doses for therapeutic reasons, it helps them. If you give it in huge volumes, it becomes toxic — and can even kill them,” another of the researchers cited, Dr. S. Hakki Onen, sleep specialist and geriatrician, told Time Magazine.

Although the Justice Department lawyers wrote that “extended sleep deprivation cannot be expected to cause ’severe mental pain or suffering,’” the doctors vigorously disagree.

After several days, “the mental pain would be all too evident, and arguably worse than physical pain,” Dr. Horne said to Obsidian Wings.

Notably, a combination of techniques similar to those used by the CIA has been ruled unlawful by the European Court of Human Rights. In the case Ireland v. U.K., the court held that a combination of sleep deprivation, hooding, wall-standing, continuous white noise, sleep deprivation and “the bread and water diet” violated international humanitarian law.

What’s odd, say former interrogators, is that the military knew this and for the most part, resisted using these techniques. The CIA, however, relying on inexperienced contractors who developed its interrogation strategies based on the military’s Survival Evasion Resistance Escape (SERE) training, seems to have completely ignored common knowledge.

“The point is you realize when you’re going through that [SERE] training, they tell you this isn’t about trying to get useful intelligence out of you, it’s about getting propoganda,” said Matthew Alexander, a 14-year veteran of the air force and leader of an elite interrogations team in Iraq and author of “How to Break a Terrorist.” (Matthew Alexander, seen here on The Daily Show, uses a pseudonym.) Sleep deprivation may be used for no longer than 48 hours in SERE training, according to the inspector general report. “They’re just trying to break down your will.”

“I think people misinterpreted that,” Alexander added. “Mitchell and Jessen, the psychologists, they took that learned helplessness theory, but they’d never done an interrogation. They were so off base.”

Greg Miller and Josh Meyer of The Los Angeles Times on Sunday confirmed earlier reports that Holder has reluctantly come around to thinking that he can’t avoid the fact that torture occurred at the hands of U.S. officials, and that U.S. and international law requires an investigation. Holder is reportedly only considering cases where CIA interrogators went beyond the rules established by the Bush administration’s lawyers, rather than investigating the legality of those rules themselves. But as I’ve written before, it’s not clear where such an inquiry would logically end. Investigating CIA functionaries low on the totem pole — which would involve re-opening cases previously dismissed by the Bush administration — would ultimately require looking into the orders they received from their superiors.

Previous proposals to create commissions to undertake broader inquiries — from Sen. Patrick Leahy (D-Vt.) and Rep. John Conyers (D-Mich.) — have so far failed to win majority support in Congress.

According to The LA Times, CIA officials are already nervous about Holder’s impending probe, with some even putting off their retirement or plans to leave the agency so they can maintain access to classified information they might need for their defense, or argue that as government officials they’re immune from suit.

“Once you’re out, it gets a lot harder,” a retired CIA official told The Times.

Here’s his math: 2 million 2010 Toyota Priuses would cost $46 billion and, at 50 miles per gallon, would reduce gasoline consumption by 1.4 billion gallons a year. That’s equivalent to 17 days’ worth of OPEC oil (we use 83 million gallons a day). Continue giving out 2 million cars annually for ten years, and now we’ve eliminated the need for 170 days’ worth of OPEC crude each year.

Sure, it’s impossible for about a thousand reasons. But on a hypothetical level, it actually makes some sense. Neil writes:

Crazy? Really? I would like to hear of another plan that in 10 years and at a cost of $400 billion (probably high, since we’d be buying in such bulk) could achieve such bankable savings in foreign oil, trade and carbon.

Public transportation? Please. We could hire Las Vegas showgirls as conductors and people still wouldn’t take light rail. As for the objection that such a thought experiment constitutes wild, stark-staring collectivism, let’s offer a free Prius to a few hundred thousand Texans and see if they decline out of free-market principle.

But I have a feeling Detroit and its lobbyists might decline. Still, a few strong and well-placed incentives could help persuade Motor City to shift its resources to hybrids and American consumers to buy them. The impact, as Neil points out, could be huge.

–

Win a free Prius when you follow TWI on Twitter! Well, no. Not really — but it’s still worthwhile.

The Los Angeles Times reports that legal experts agree that the bill that passed the House on Friday would probably not be considered a bill of attainder, which is essentially a law that singles out one group for punishment and is prohibited by the Constitution. It’s probably not an ex post facto law either, which retroactively punishes actions that were lawful when they were committed.

“The Supreme Court has limited those provisions to laws that ‘inflict punishment,’ mostly in the criminal arena,” writes The Times’ David Savage.

While it may feel like punishment to all those corporate executives accustomed to multi-million-dollar bonuses, tax laws are technically not punitive, and legal experts say they’re rarely struck down as unconstitutional.

But civil rights lawyers who’ve read Obama’s orders think the concerns are overblown, and the plain language of the executive orders Obama issued in the first 48 hours of his presidency suggest just the opposite.

“The reality is we don’t know what he’s doing or what he plans to do in this area other than he set up a study team to make recommendations on whether and how a rendition program would continue,” Chris Anders, legislative counsel for the ACLU in Washington, told me earlier today.

“People are reading into the provision that it does not take away short-term detention authority from the CIA,” Anders said. “That could be meant to protect a variety of different things. Rendition would only be one of them. But if you look through the executive orders, there are a number of places where President Obama kind of kicked the can down the road in terms of making decisions or putting them off.”

It was, after all, only his second day in office when he issued those orders.

As I’ve reported before, Obama’s orders were important first steps and in some cases largely symbolic moves; most still require the new administration to take many more specific actions down the road — in terms of closing Guantanamo, prosecuting suspected terrorists, and concealing information about government operations that President Bush had deemed state secrets.

“It may very well be that the administration does not yet know enough about either what the CIA has done and can do, or what they want it to do and not to do,” Anders said. “They know they want to shut down the secret prison program, so they did that. But they may have been concerned that they didn’t know enough yet to deal with other kinds of detention the CIA has.”

That doesn’t mean the order leaves open the CIA’s ability to return to torturing people, or to so-called “extraordinary rendition” — the Bush administration’s way of outsourcing torture by sending suspects to other countries that would likely interrogate them under torture. In fact, Obama has specifically committed to abide by the United Nations Convention Against Torture, which specifically forbids extraordinary rendition.

Even Tom Malinowski, the Washington advocacy director for Human Rights Watch, has adopted a similar “wait and see” attitude, favoring to take the new president at his word.

“What I heard loud and clear from the president’s order was that they want to design a system that doesn’t result in people being sent to foreign dungeons to be tortured,” Malinowski told The Los Angeles Times.

As Scott Horton put it in his blog today, “The LA Times just got punked.” Horton attributes the rash of reporting that Obama plans to continue the Bush rendition policies — complete with prisoner abuse and torture — to leaks from disgruntled CIA officials and to the right-wing media. The Washington Times, for example, last week reported that Obama’s executive orders leave open the possibility for the CIA to keep operating its “black sites.”

“The provision illustrates that the president’s order to shutter foreign-based prisons, known as black sites, is not airtight and that the Central Intelligence Agency still has options if it wants to hold terrorist suspects for several days at a time,” wrote The Washington Times’ Eli Lake in his “exclusive” reading of the president’s orders.

My own view is that if you parse every sentence of every order and memorandum issued by the president, you’re going to pretty easily find something that he did not address. Whether you want to label that a deliberate and dangerous “loophole” — or merely a cautious approach that allows further study of a difficult problem — seems to depend on which side of the aisle you’re sitting on.

Last week, the McCain campaign pointed to a story in The Los Angeles Times describing a going-away party in Chicago for Khalidi that Obama attended. The campaign insinuated that Obama is somehow connected to Islamic terrorism.

However, with McCain as chairman, IRI gave an organization headed by Khalidi several grants during the 1990s, including one grant in 1998 worth nearly $500,000.

Today, Harper’s magazine reports that R. Bruce McColm, who served as president of IRI from 1993 to 1995, said that McCain was personally involved in the allocation of the grants and never expressed any concern about Khalidi’s reputed radical tendencies.

Rashid Khalidi was well known for his criticism of Yasir Arafat. He never was a spokesman for the PLO and was a professor at the Institute for Palestine Studies and a professor at American University in Beirut. He was the founder of the Center for Palestine Research and Studies. … The Clinton administration wanted the various NED-related institutes to begin working on the West Bank. All our proposals had to be approved at board meetings with John McCain in attendance and in agreement. John did think highly of these grants[...]

Over time, the center conducted over 30 polls for the IRI. My understanding was that grants extended far beyond my tenure to l998. It was always my understanding that Khalidi was directly involved in the research. We were impressed by the initial polls and analysis. So obviously IRI continued to believe in their work after I left. Ironically, it was Khalidi’s academic background and his known coolness to the PLO that attracted our interest. How strange to see the McCain campaign use Khalidi as a “type of terrorist” with whom Obama hangs around.

No word yet from the McCain campaign as to whether it intends to apologize for smearing Khalidi to score cheap political points.

(Via ABC’s Jake Tapper)

In April, The Los Angeles Times published a story that included a description of a videotape of a 2003 party for Khalidi as he was preparing to leave his job at the University of Chicago for his current gig at Columbia University. Obama, then an Illinois state senator, was at the party and gave a moderate speech about bringing opposing sides together, according to the Times.

In an interview this morning with Radio Mambi, a popular Spanish-language radio station in South Florida, McCain apparently seized on a 2005 New York Sun report alleging that former Weatherman and fellow Chicagoan William Ayers was also at the party.  This was not reported in The Times story.

McCain also claimed that Khalidi was a spokesman for Yasser Arafat’s Palestine Liberation Organization, a charge Khalidi has denied. McCain joined other conservatives in calling on the Times to release the video.

However, the newspaper says the videotape was shared on the condition that it not be released. To release it would signal to all future potential sources that The Los Angeles Times will give them up at the first sign of pressure.

Alaska Gov. Sarah Palin happily jumped on the bandwagon today, referring to The Times as the Obama campaign’s “pet newspaper.” (No word yet on how The New York Times is taking this news.)

The whole thing is clearly a distraction. If McCain is really concerned about Khalidi, he should explain why the International Republican Institute, which McCain chaired at the time, gave an organization headed by Khalidi a grant of nearly $500,000 in 1998.

But the convergence of Obama, Ayers and someone with an Arabic name is a perfect bundle for McCain, particularly in South Florida — home to lots and lots of Jews. People weren’t really buying the Ayers-Obama tie, but with Khalidi in the mix, the new implication is: Obama is connected to Ayers, a former domestic terrorist; both are connected to a Muslim who reputedly was connected to the PLO, which was viewed by Israel as a terrorist organization. Ergo, Obama is connected to Islamic terrorism. Throwing a representative of the elite liberal media into the narrative doesn’t hurt either.

However, if McCain really wants people to believe that Obama has connections to terrorism, he should stop pussy-footing around the issue and come out and say it –  so the American people can judge the merits of the claim openly and honestly.