Over the weekend, news reports revealed that terror suspects are being held in a secret part of the prison at that Bagram air base for interrogation. They’re denied access to the International Committee of the Red Cross, and some have claimed they’ve been subjected to abuses, including sleep deprivation, sexual humiliation and other maltreatment similar to the sorts of interrogation abuses that occurred during the Bush administration.

Human Rights First is now calling for a full investigation of the so-called “black prison” at Bagram and the alleged abuses there.

“These allegations raise serious questions about whether reforms initiated by the Obama administration are being properly implemented and about whether they are sufficient to end torture and detainee abuse,” the organization wrote in a letter sent yesterday to Afghanistan Commander Vice-Admiral Robert Harward. “If substantiated, the alleged conduct of detaining authorities is in violation of U.S. law, including the Detainee Treatment Act, and the 2006 Army Field Manual, which is applicable to all U.S. government agencies. It is also in violation of international law, including Common Article 3 of the Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention against Torture.”

The letter asks that the results of the investigation be made public and that the perpetrators of abuses be held accountable.

Both of the newspapers cautioned that none of the reports could be independently corroborated. But the stories emphasize the point I’ve been making for a while now that even if President Obama manages to close the Guantanamo Bay detention center in the next several months (he’s already conceded he’s not going to meet his original January deadline), that’s not going to completely solve the United States’ image problem when it comes to prisoner mistreatment and abuse — because we still have Bagram.

Bagram has already been called “Obama’s Gitmo,” and “The Next Guantanamo” given that the administration is holding about 700 terror suspects there indefinitely without charge, with little meaningful opportunity to challenge their detention, no right to habeas corpus, and in conditions far more secretive than at Guantanamo Bay. We know that several detainees died from abuse at Bagram during the Bush administration, and conveniently, the Defense Department just stopped reporting detainee deaths in Afghanistan sometime in 2006.

So the latest reports of abuse shouldn’t come as a huge surprise. Just last summer inmates were protesting their indefinite detention at Bagram, refusing to leave their cells or even speak to family members. That supposedly led to a military review and overhaul of the U.S. detention center in Afghanistan, and recently the United States opened a new and improved prison facility on the air base, designed to improve inmates’ living conditions and quiet some of the complaints. The former detainees interviewed by the Times and Post reporters may not have had the benefit of those reported improvements. But given the secrecy that still surrounds the Bagram facility and its inmates, and the fact that the wing of the prison operated by Special Operations forces is even more secretive and closed to the ICRC, the Obama administration is going to have a hard time answering these latest claims.

These latest documents provide a glimpse of the early struggles between the FBI and the Pentagon over just how to conduct the “war on terror” and how to interrogate and treat that war’s detainees. Sadly, they reveal that the FBI knew perfectly well — and repeatedly warned Defense Department officials, as well as Justice Department lawyers — that the abusive interrogation techniques being used on detainees at Guantanamo Bay were likely to be ineffective and make subsequent prosecutions impossible.

As one memo says, while the interrogation techniques based on tactics used in the U.S. Army Search, Escape, Resistance and Evasion (SERE) training “may be effective in eliciting tactical intelligence in a battlefield context, the reliability of information obtained using such tactics is highly questionable, not to mention potentially legally inadmissible in court.”

That memo was written in May 2003.  The “enhanced” interrogation techniques, such as stress positions and prolonged sleep deprivation, were still being used and justified in memos as late as July 2007. The memo raises several important questions. Did the Office of Legal Counsel lawyers drafting those later memos for the CIA not know about the FBI’s earlier objections? Or did they just dismiss them out of hand? Were they told to ignore those earlier conclusions?

Then there’s the fact that senior officials from the Criminal Investigative Task Force, including the chief psychologist with the Naval Criminal Investigative Service “repeatedly argued for implementation of a rapport-based approach” and “lamented the fact that many DHS [Defense Human Intelligence Services] interrogators seem to believe that the only way to elicit information from uncooperative detainees is to use aggressive techniques on them.”

“Despite objections raised by the [Behavioral Analysis Unit of the FBI], the DHS initiated an aggressive interrogation plan for #63,” who elsewhere in the document is identified as Mohammed al-Qatani. “This plan incorporated a confusing array of physical and psychological stressors which were designed, presumably, to elicit #63′s cooperation. Needless to say, this plan was eventually abandoned when the DHS realized it was not working and when #63 had to be hospitalized briefly.”

Officials from the Criminal Investigative Task Force and the Behavioral Analysis Unit drafted a letter “reiterating the strengths of the FBI/CITF approach” and providing “a detailed historical record of the development of interagency policies regarding aggressive interrogation techniques in GTMO.” The letter also argued that they were a bad idea.

Not only did the officials not succeed in convincing DHS to abandon the techniques, but the document described how the military and DHS inaccurately portrayed to the Pentagon that the FBI’s Behavioral Analysis Unit approved of and helped design the very techniques that the BAU warned would backfire.

Although we knew before that the FBI had disagreed with the so-called “enhanced” interrogation techniques and refused to participate in them, this latest release of previously classified information reveals the extent to which FBI officials made both the legal and practical case to senior Pentagon and Justice Department officials for why the usual rules on interrogations should be followed.

That they were so blatantly ignored suggests more than just bad judgment. It suggests a deliberate indifference to the facts and the law, which cries out for a more thorough investigation.

09 Memos

Although CCR has been representing al Qahtani for years, since at least October 2006, when he filed his petition for habeas corpus with the federal court, the government never disclosed the existence of these videotapes, CCR said today, although they should have been turned over as potentially exculpatory evidence.

The videotapes, which a judge has ordered the government to produce, are expected to reveal al Qahtani’s condition toward the end of three months of intensive solitary confinement and isolation just before the special interrogation plan was implemented. In a letter to his superiors, FBI Deputy Assistant Director T.J. Harrington described al Qahtani at the time as “evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reportedly hearing voices, crouching in a corner of the cell covered with a sheet for hours on end).” Harrington was reporting on the possible abuse of men in U.S. custody.

The interrogation of al Qahtani included severe sleep deprivation, isolation, sexual humiliation, prolonged exposure to hot and cold and threats to him and his family.

The government has alleged that al Qahtani intended to participate in the 9/11 attacks, but although the other alleged 9/11 co-conspirators have all been charged by the military commissions, the Convening Authority of the military commissions dismissed the charges against al Qahtani last year. She has also said that he was tortured.

Today, Judge Colleen Kollar-Kotelly released a declassified version of her opinion in the case of Fouad Mahmoud Al Rabiah. Although the opinion is heavily redacted, the judge’s point is clear.

“The evidentiary record on which the Government seeks to justify his indefinite detention is surprisingly bare,” she wrote. “Far from providing the Court with credible and reliable evidence as the basis for Al Rabiah’s continued detention, the Government asks the Court to simply accept the same confessions that the Government’s own interrogators did not credit.”

The U.S. government claimed Al Rabiah provided “material support” to the Taliban and al-Qaeda, and met several times with Osama bin Laden. Al Rabiah denied this, but apparently “confessed” under abusive interrogations to having run a supply depot for al-Qaeda fighters. Al Rabiah’s lawyers argued that the confessions were all coerced, and that it was a case of mistaken identity: the government had confused Al Rabiah with another man with the same nickname. That man was killed by American air strikes.

Judge Kollar-Kotelly, while acknowledging that strong possibility, decided she didn’t ultimately need to go there because it was clear that the government did not have credible evidence against Al Rabiah. Instead, she noted the many “inconsistencies and impossibilities” in the government’s case and the unreliable nature of the government’s witnesses, including that at least one of them had been subjected to a week of sleep deprivation via the “frequent flyer” program, which involves moving a detainee from one cell to another every couple of hours. Judge Kollar-Kotelly notes that this was both in violation of the Army Field Manual and violated the guidance issued by the Commander at US SOUTHCOM. In any event, it destroyed the credibility of the witness’s claims against Al Rabiah, which were never repeated again.

In the end, the judge threw out the government’s case, ruling that the detention of Al Rabiah for the past seven years was unjustified:

“[T]he court concludes that Al Rabiah’s uncorroborated confessions are not credible or reliable, and that the Government has failed to provide the Court with sufficiently credible and reliable evidence to meet its burden of persuasion. If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court.”

David Cynamon, Al Rabiah’s lawyer in this victory, sent me these thoughts on the case in an email today:

I think the significance of this case is that it totally rebuts the torture apologists.  Thus far Cheney and his ilk have argued that torture is OK because, after all, guys like KSM and Abu Zubaydah are bad guys and it was necessary to torture them because of the valuable intelligence.  Those arguments are without merit, but they appeal to a lot of people.  But Al Rabiah is not a bad guy — he’s a totally innocent man — and he had no intelligence value because he is an innocent man.  This demonstrates why you need to have a bright line against torture and abuse, and why declaring the Geneva Conventions to be “quaint” and outmoded has such a disastrous effect.  Maybe you start off with the idea that you’re “only” going to torture the KSMs, but pretty soon you end up torturing anyone who doesn’t fit your preconceived determination that everyone at Guantanamo is “the worst of the worst.”  What the interrogation reports show in Al Rabiah’s case is that the more he insisted on his innocence, the harsher the interrogations got, because his interrogators would not, and, indeed could not, believe that he was innocent.

Here’s Judge Kollar-Kotelly’s decision:

Salim Hamdan, Osama bin Laden's alleged driver, was held in Cuba at Guantanamo Bay prison camp like these detainees. (Department of Defense photo by Petty Officer 1st class Shane T. McCoy, U.S. Navy)

New documents obtained by TWI related to the case of Mohammed Jawad, an adolescent tortured by Afghan police and then abused again by U.S. interrogators, suggest that not only certain CIA interrogations, but interrogations by the Department of Defense demand a broader investigation as well.

Last month, Attorney General Eric Holder announced that he would investigate only CIA interrogations that appeared to have violated the agency’s rules and guidance from the Department of Justice. The Jawad case, however, reveals that U.S. military interrogations also violated well-established laws and appear to have violated the Justice Department’s legal guidelines as well. The newly obtained documents also reveal that the Department of Defense repeatedly failed to follow up on complaints by Jawad’s lawyers that its officers were breaking the law.

Illustration by: Matt Mahurin

Jawad, who was about 12 years old when he was captured and accused of throwing a hand grenade at U.S. soldiers, endured “cruel and inhuman” treatment and possibly “torture” while in U.S. custody, a U.S. military commission judge ruled last year, determining that his supposed “confessions” to the crime were therefore unreliable. A federal district court judge later similarly refused to admit the confessions in ruling on Jawad’s habeas corpus petition, and announced that without Jawad’s statements, the government’s case was “riddled with holes.” She eventually granted Jawad’s petition, and Jawad was released on Aug. 24 after nearly seven years in captivity, most at the U.S. detention center at Guantanamo Bay.

Despite the court’s rulings that Jawad was mistreated in U.S. custody, however, no one has ever been punished or otherwise held accountable. His lawyers say that despite repeated requests, the Defense Department never investigated whether its officers had violated the law. Jawad’s lead military lawyer, Air Force Maj. David Frakt, has released to TWI some of the details of how and why he asked the Defense Department to investigate, and how his repeated complaints about Jawad’s treatment went ignored.

Jawad now plans to sue the United States for his mistreatment, which included such extreme sleep deprivation that it appears to have violated even the rules governing interrogation tactics issued by the Bush Justice Department’s Office of Legal Counsel, which issued the now-infamous “torture memos.”  A military judge in Jawad’s case excluded his “confessions” in part on the grounds that he endured 14 days straight of sleep deprivation (by means of what came to be known as the “frequent flyer” program), which may well have amounted to torture. Justice Department memos approved up to 96 hours of sleep deprivation, although some make reference to 180 hours, which would be 11 days. But 14 days exceeds the guidelines of all of the legal memos regarding interrogations that have been revealed so far.

According to Judge Stephen Henley, the U.S. Army colonel who ruled on Jawad’s military commission case, Jawad was “moved from cell to cell 112 times from 7 May 2004 to 20 May 2004, on average of about once every three hours.” Jawad was shackled but not interrogated; “the scheme was calculated to profoundly disrupt his mental senses.”

The alleged purpose of the “frequent flyer” program, Judge Henley wrote, was “to create a feeling of hopelessness and despair in the detainee and set the stage for successful interrogations.” But by the time Jawad was subjected to it, he “was of no intelligence value to any government agency,” Judge Henley ruled. “The infliction of the ‘frequent flyer’ technique upon the Accused thus had no legitimate interrogation purpose.” (Significantly, interrogation experts say sleep deprivation doesn’t produce useful information even if the subject does know something.)

When Frakt, Jawad’s appointed military defense lawyer, learned about how the frequent flyer program was used on Jawad, he became so concerned that, as a military officer, he felt obliged to report to his superiors what he believed was evidence of a war crime. So on May 29, 2008, Frakt sent a memo to the chief defense counsel at the Office of Military Commissions.

“I am reporting a suspected LOAC [Law of Armed Conflict] violation that I have uncovered in the course of my duties as a defense counsel assigned to the Office of Military Commissions Defense,” Frakt wrote. Frakt wrote that after an exhaustive review of the facts and relevant law, he believed Jawad had been tortured — in violation of the Geneva Conventions, U.S. and international law, and Defense Department regulations. “Accordingly, I believe I have an affirmative obligation to report the incident to my chain of command,” he wrote. Frakt cited several provisions, all of which require reporting of suspected war crimes to a supervisor.

Records provided by the government in the course of the case before the military commission reveal that from May 7, 2004 until May 20, 2004, Jawad, a teenager at the time, was subjected to the program.

“During this 14 day period, Mr. Jawad was moved from cell to cell 112 times, an average of every 2 hours 50 minutes,” Frankt wrote in the memo. “There were eight extra moves of very short duration between the hours of midnight and 0200 to ensure maximum disruption of sleep.”

After sending that memo, Frakt expected to receive a response. At least, eventually. But he received nothing.

So on Oct. 7, 2008, he followed up with an e-mail to the Commander in charge at the U.S. Southern Command post, Joint Task Force for Guantanamo Bay, or SouthCom-JTFGTMO. He cc’d four lawyers in the Pentagon’s Office of General Counsel.

In his email, Frakt wrote:

On 29 May, I filed this LOAC violation memo with the Chief Defense Counsel, COL David. He forwarded the memo to your office on or about 1 June. Presumably your office forwarded it to SOUTHCOM. I have never received any information about the investigation.

The military judge in the Jawad case recently found that Jawad was subjected to the frequent flyer program, and that it constituted “abusive conduct and cruel and inhuman treatment.” (see attached ruling) He found it unnecessary to decide whether the conduct rose to the level of torture but did find that the action was intended to seriously disrupt the mental senses, which is one of the elements of psychological torture. He recommended disciplinary action for this “flagrant misbehavior”. [Confidential testimony from Guantanamo officer indicated] that the program was standard operating procedure, was carried out on many detainees as part of the camp “incentives program” and was personally approved by Col Nelson Cannon (now Maj Gen) and Brig Gen Jay Hood (now Maj Gen). Please provide me with an update on the status of the mandatory LOAC violation investigation or direct me to the appropriate officials who can respond to this inquiry. If you need any further supporting documentation to assist you in the investigation, please let me know. Thank you very much.

Frakt received no response. In January of this year, he sent another e-mail to the same Commander and a Captain at Joint Task Force-Guantanamo, and the same set of lawyers in the Pentagon’s General Counsel office.

It read, in part:

It has now been over seven months since this report was filed. I have never received any update on the status of the mandatory LOAC violation investigation. In the interim, the Military Commission has determined that the violation did, in fact, occur and that “under the circumstances, subjecting [Mr. Jawad] to the ‘frequent flyer’ program from May 7-20, 2004 constitutes abusive conduct and cruel and inhuman treatment.” In other words, Mr. Jawad was abused, in clear violation of the Geneva Conventions. The commission has specifically recommended that “those responsible should face appropriate disciplinary action.” (See attached Ruling D-008)

Upon receipt of a LOAC violation report, a formal investigation is mandatory and should be done by the most expeditious means available. However, it does not appear that the DoD Directive was followed because I have never been contacted by anyone regarding my report. Please confirm whether JTF-GTMO or SOUTHCOM investigated this incident, and provide me with an update on the status of this investigation or direct me to the appropriate authority at USSOUTHCOM who can answer this query. If I do not receive a satisfactory explanation, I intend to pursue this matter with the appropriate Inspector General offices. Thank you very much for your prompt attention.

V/R

David J. R. Frakt, Major, USAFR

To this day, says Frakt, he has not hear back from the Defense Department as to whether anyone investigated the abuse and potential war crimes violation.

The Defense Department and US-SOUTHCOM-JTFGTMO did not respond to TWI’s request for comment. TWI has other outstanding requests for comment from the the Defense Department, including an explanation of why the department stopped reporting the deaths of detainees in U.S. custody in Iraq and Afghanistan, and a statement of the current policy of reporting those deaths. Despite at least half a dozen requests, TWI has never received an answer.

In September 2008, a U.S. military judge ruled that Mohammed Jawad, an Afghan arrested as an adolescent in 2002, imprisoned at Bagram and then at Guantanamo Bay, had been subjected to “cruel and inhuman treatment” by the U.S. military.

Specifically, Judge Stephen Henley, a U.S. Army colonel, found that the military had subjected Jawad to the so-called “frequent flyer” program: he’d been “moved from cell to cell 112 times from 7 May 2004 to 20 May 2004, on average of about once every three hours.” Jawad was shackled but not interrogated; “the scheme was calculated to profoundly disrupt the his mental senses.” Jawad was accused of throwing a hand grenade at U.S. soldiers, though a court later found there was no reliable evidence to support the charge.

The alleged purpose of the “frequent flyer” program, Judge Henley wrote, was “to create a feeling of hopelessness and despair in the detainee and set the stage for successful interrogations.” But by the time Jawad was subjected to it, he “was of no intelligence value to any government agency,” Judge Henley ruled. “The infliction of the ‘frequent flyer’ technique upon the Accused thus had no legitimate interrogation purpose.” (It’s worth noting that interrogation experts say sleep deprivation doesn’t help interrogations even if the subject does know something.)

This 13 consecutive days of sleep deprivation, the judge concluded, constituted “abusive conduct and cruel and inhuman treatment.”  Judge Henley also acknowledged that it violated the United Nations Convention Against Torture, to which the United States is a signatory.

What’s more, 13 days of “frequent flying” also violates the rules set out by the Justice Department’s Office of Legal Counsel. As I’ve pointed out before, those allowed anywhere from 48 hours to 180 hours of sleep deprivation on “high-value” detainees. But OLC memos never condoned 13 days straight of sleep deprivation on anyone, let alone someone like Jawad, who was at best an al-Qaeda or Taliban foot soldier.

In fact, as the Senate Armed Services Committee report on the treatment of detainees by the U.S. military notes, the “frequent flyer” program “was not on the list of 24 techniques OLC advised the DoD General Counsel were permitted.” The report added: “The Committee is unaware of a request from DoD to OLC for legal guidance on whether that technique comported with techniques on that list of 24 approved by the Secretary.”

Last week, Walter Pincus wrote in The Washington Post about the case of Lt. Col. Allan West, who allowed his soldiers to beat up an Iraqi police officer and threaten him with a knife and a gun to convince him to give up information. The CIA is now reportedly outraged that Attorney General Eric Holder would authorize an investigation of its agents for crossing the lines of permissible interrogations while the military guys are getting away with it.

Walter Pincus and his CIA source were right: the Department of Defense violated the rules just like the CIA did.  When it comes to whether the attorney general should prosecute, the difference may simply be that soldiers are subject to the military’s own disciplinary system rather than the usual criminal laws.

Jawad’s case is actually worse than the West case, since the military knew by the time they abused Jawad that he was of no intelligence value; so with Jawad, it was cruel and inhuman treatment just for the sake of it.

But what if the military didn’t discipline or prosecute anyone, or even investigate? The military judge’s ruling in Jawad’s case was only for the purpose of deciding whether his military commissions case should be dismissed or the evidence of his confessions under torture suppressed. (The judge chose the latter.)

Yesterday I spoke to Eric Montalvo, Jawad’s former military defense lawyer who’s now in private practice and plans to represent Jawad in a lawsuit against the U.S. government. He said that during the military commission proceedings, Jawad’s defense team “asked for an investigation that was never conducted.” He’s not aware of any investigation conducted since then.

If the military refuses to investigate, should the Department of Justice step in?  Or if it’s beyond the DOJ’s jurisdiction, how about a commission inquiry?  The military judge’s ruling in the Jawad case would seem to provide even more support for the argument that a broader investigation is necessary.

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.”

In its document, the government argues that these documents are exempt from the Freedom of Information Act because they would reveal “intelligence sources and methods,” notwithstanding that the Obama administration has said it’s no longer using those abusive methods.

In that regard, it’s much like the Justice Department’s argument that courts must dismiss lawsuits that claim the government engaged in torture or warrantless wiretapping, because they would reveal “state secrets” — even though, supposedly, the government doesn’t do those secretive things anymore.

Advocates for accountability, at least, might find a silver lining here. The government’s insistence on keeping the evidence secret would seem to provide a strong argument for why Congress and Attorney General Eric Holder ought to conduct their own aggressive investigation.

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Moreover, in Footnote 34, the IG reports that “According to the General Counsel, the period was reduced to 48 hours in December 2003.”

But the Dec. 30, 2004 memo, also released on Monday, this one from the CIA to the Justice Department’s Office of Legal Counsel concerning the treatment of high-value detainees at CIA “black sites” says on page 13 that “sleep deprivation may continue to the 70 to 120 hour range, or possibly beyond for the hardest resisters, but in no case exceed the 180-hour time limit.”

So it appears that at some point after the IG report was completed, the CIA increased the permissible number of hours of sleep deprivation from 48, in December 2003, to 180, in 2004.  That’s 132 hours more of sleep deprivation than the CIA’s general counsel had allowed.

And we know that it stayed at that much higher level for years afterwards, because the May 10, 2005 memo from the Office of Legal Counsel that we’ve previously reported on also approved 180 hours of sleep deprivation. (Remember, this can be accompanied by food deprivation, nakedness, diapering, extreme hot and cold and shackling into stress positions.)

So why the change? How was only 48 hours of sleep deprivation legal in December 2003, but more than three times as long was legal just a year later? Who was changing the rules, and why?

We know that at some point, Jack Goldsmith, hired to head the head of the Office of Legal Counsel in October 2003, withdrew some of the earlier memos authorizing extreme interrogation practices because he worried the memos were “legally flawed.” But then, Goldsmith resigned in June 2004.

Did his resignation open the way for the Justice Department to boost the permissible duration of the sleep deprivation technique back up to 180 hours?

I’ve put in a call to Goldsmith about this, and will report back if I hear anything.

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