HR 3326

H.R.3326, Department of Defense Appropriations Act, 2010

(Also note, 8/3/2009: Received in the Senate and Read twice and referred to the Committee on Appropriations.)

Sec. 8119. (a) None of the funds made available in this or any prior Act may be used to release an individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, the District of Columbia, or any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI).

(b) None of the funds made available in this or any prior Act may be used to transfer an individual who is detained, as of April 30, 2009, at the Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, the District of Columbia, or any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI), for the purposes of detaining or prosecuting such individual until 2 months after the plan detailed in subsection (c) is received.

(c) The President shall submit to the Congress, in writing, a comprehensive plan regarding the proposed disposition of each individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, who is not covered under subsection (d). Such plan shall include, at a minimum, each of the following for each such individual:

(1) The findings of an analysis regarding any risk to the national security of the United States that is posed by the transfer of the individual.

(2) The costs associated with not transferring the individual in question.

(3) The legal rationale and associated court demands for transfer.

(4) A certification by the President that any risk described in paragraph (1) has been mitigated, together with a full description of the plan for such mitigation.

(5) A certification by the President that the President has submitted to the Governor and legislature of the State or territory (or, in the case of the District of Columbia, to the Mayor of the District of Columbia) to which the President intends to transfer the individual a certification in writing at least 30 days prior to such transfer (together with supporting documentation and justification) that the individual does not pose a security risk to the United States.

(d) None of the funds made available in this or any prior Act may be used to transfer or release an individual detained at Naval Station, Guantanamo Bay, Cuba, as of April 30, 2009, to the country of such individual's nationality or last habitual residence or to the freely associated States of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), or the Republic of Palau, or to any other country other than the United States, unless the President submits to the Congress, in writing, at least 30 days prior to such transfer or release, the following information:

(1) The name of any individual to be transferred or released and the country to which such individual is to be transferred or released.

(2) An assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services or the United States, that is posed by such transfer or release and the actions taken to mitigate such risk.

(3) The terms of any agreement with another country for acceptance of such individual, including the amount of any financial assistance related to such agreement.

FYI, from 111-230 DEPARTMENT OF DEFENSE APPROPRIATIONS BILL, 2010 REPORT of the COMMITTEE ON APPROPRIATIONS [to accompany H.R. 3326]:

The Committee on Appropriations submits the following report in explanation of the accompanying bill making appropriations for the Department of Defense, and for other purposes, for fiscal year ending September 30, 2010.

GUANTANAMO BAY NAVAL BASE

The Committee has not provided the $100,000,000 requested to support the relocation and disposition of individuals detained at the Guantanamo Bay Naval Base. The Department of Defense is still awaiting a decision by the Administration on the future of the detention facility at Guantanamo Bay, and these funds are not needed at this time...

ADDITIONAL VIEWS OF REPRESENTATIVES JERRY LEWIS AND C.W. BILL YOUNG ON THE FISCAL YEAR 2010 DEFENSE APPROPRIATIONS BILL

GUANTANAMO BAY

This January, the President signed the executive order to close the Guantanamo Bay Detention Facility. More than five months later there is still no evidence of a plan to carry out this order, and there has been no consultation with the Congress. In fact, just this week the Administration announced that they are extending their Detention Policy Task Force for another six months, because they were not able to sort it all out within the President’s timetable. Despite these difficulties, the suspected plotter of the 1998 Embassy bombings in Africa has already been moved to New York to face trial. The Government of Palau has announced that they will accept some Uighur detainees, and press accounts linked that action to a $200 million payoff by the U.S. Government that the State Department will not confirm or deny. Finally, four Uighur detainees have already been released to Bermuda. Congress and the American public found out about these actions and diplomatic efforts after the fact.

And there is more—detainee transfers have also been made to Saudi Arabia, Chad, and Iraq. We have heard rumors about deals with Yemen, Italy, and Albania. All of this is being done without an assessment of the risks to American people at home and abroad, or an assessment of risk to our U.S. forces, especially since the detainees at Guantanamo include the perpetrators of some of the most horrific terrorist acts against Americans, including 9/11, the USS Cole bombing, and the Embassy bombings in Africa.

Director Mueller of the FBI testified to Congress that bringing these detainees to the U.S. poses risks to national security, including providing financing, radicalizing others, and undertaking attacks in the U.S. Additionally, the Department of Defense has reported that at least 14 percent of former Guantanamo detainees have returned to terrorist activity. This Administration is ignoring or disregarding those risks, and they continue to stonewall the Congress. We need to stop the Administration from rushing to transfer or resettle detainees simply to fulfill a campaign promise.

We commend Chairman Murtha for the inclusion of Ranking Member Lewis’s Guantanamo language in the Managers Amendment. This language, which contains the same requirements in the Commerce/Justice/Science bill that prohibits release or permanent transfer of detainees to the U.S. and requires a risk assessment prior to any transfer for purposes of prosecution, and the language in the Interior bill that expands those restrictions to U.S. territories, has enjoyed bipartisanship support during the Fiscal Year 2010 Appropriations Process. It ensures that the Administration cannot act unilaterally and ignore the concerns of the Congress on such an important matter.

Language re: Guantanamo Detainees in H.R.2847, the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010 (Passed by House - the Senate version does not include this language)

Sec. 532. (a) None of the funds made available in this or any prior Act may be used to release an individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia.

(b) None of the funds made available in this or any prior Act may be used to transfer an individual who is detained, as of April 30, 2009, at the Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia, for the purposes of detaining or prosecuting such individual until 2 months after the plan detailed in subsection (c) is received.

(c) The President shall submit to the Congress, in writing, a comprehensive plan regarding the proposed disposition of each individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, who is not covered under subsection (d). Such plan shall include, at a minimum, each of the following for each such individual:

(1) The findings of an analysis regarding any risk to the national security of the United States that is posed by the transfer of the individual.

(2) The costs associated with not transferring the individual in question.

(3) The legal rationale and associated court demands for transfer.

(4) A certification by the President that any risk described in paragraph (1) has been mitigated, together with a full description of the plan for such mitigation.

(5) A certification by the President that the President has submitted to the Governor and legislature of the State to which the President intends to transfer the individual a certification in writing at least 30 days prior to such transfer (together with supporting documentation and justification) that the individual does not pose a security risk tot he United States.

(d) None of the funds made available in this or any prior Act may be used to transfer or release an individual detained at Naval Station, Guantanamo Bay, Cuba, as of April 30, 2009, to the country of such individual's nationality or last habitual residence or to any other country other than the United States, unless the President submits to the Congress, in writing, at least 30 days prior to such transfer or release, the following information:

(1) The name of any individual to be transferred or released and the country to which such individual is to be transferred or released.

(2) An assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services or the United States, that is posed by such transfer or released and the actions taken to mitigate such risk.

(3) The terms of any agreement with another country for acceptance of such individual, including the amount of any financial assistance related to such agreement.

update

Al-Ghizzawi is now allowed to spend some time with his fellow prisoners, some time watching movies, and he can attend some language classes (English). My other client, Razak Ali, has always been in Camp 4-one of the “better” camps at Guantanamo and he has never had the serious health and psychological problems that come with being held in solitary confinement…for literally years. That being said…these years have been very hard for both men.

Their cases are slowly working through the system. Razak Ali’s case was delayed because his original judge had a heavier caseload of Guantanamo cases than the other judges. His case was moved to a different judge and despite the “justice” departments attempts to do everything it can to delay his case it is slowly moving ahead. In Al-Ghizzawi’s case I agreed to a temporary stay of his case so that the Obama Review Team could review his situation. Now that it is clear that the Obama administration is unwilling or unable to move the men that need diplomatic resettlement help I have asked the judge to lift the stay and set a hearing date for his Habeas petition.

Both men have now started their eighth year at Guantanamo. Neither man will ever be charged with wrongdoing. The same people who ran this litigation for the Bush administration are running things for the Obama administration. Those bright attorneys that Obama put into place and which gave some of us great hope for a change are standing like deer in the headlights. It reminds me of the old saying that being smart will only get you so far..or as the kids say “no guts, no glory.” There is definitely a shortage of guts.

Roger Fitch

Roger Fitch Esq • July 1, 2009

Our Man in Washington

“Terrorist Incapacitation” – the new gloss for indefinite detention … If tax lawyers can be indicted for fraudulent advice, why not John Yoo for torture advice? ... Suppressed report on “interrogation policy” due to see the light of day

Michael Jackson’s death provided the perfect cover for a Friday afternoon “bad news dump”, e.g. the strategically leaked report that the Obama administration is drafting a Bush-like executive order to allow indefinite detention of terrorist suspects.

Glenn Greenwald smelled a rat.

Mr Obama’s rumoured move would shortcut Congress’ new legislation restricting his power to bring detainees to the US.

Detainees are challenging the new law as a backdoor attempt to frustrate the Supreme Court’s mandate of habeas in the Boumediene decision.

Quite fortuitously, the Democrat-friendly Brookings Institution simultaneously released its proposed Model Law for Terrorist Incapacitation, TI being the new gloss for indefinite administrative detention.

The report, by security court advocate Ben Wittes, draws on the expertise of tainted and even criminally-implicated Bush appointees such as Jonathan Fredman, the CIA lawyer who flew down to Guantánamo and counselled interrogators that, “If the detainee dies, you’re doing it (torture) wrong”.

The ground has already been prepared with testimony to Congress on existing security detentions.

The discredited military commissions are also back on the agenda.

In Boumediene, the court said the Constitution isn’t something that can be turned off and on like a tap.

But that’s precisely what Congress and Obama have in mind.

Justice (but not Pentagon) lawyers are offering a few morsels of due process, yet it’s still hard to see – after Hamdan – how military commissions can be used for non-war crimes occurring before there was a war or outside theatres of war.

Human rights organisations are calling for public hearings on commissions, and the proposal has drawn criticism in articles by human rights lawyer Deborah Pearlstein (pic) and law prof David Glazier.

* * *

A ruling in José Padilla’s federal civil suit against John Yoo suggests that the notorious torture advocate may actually face trial.

The nowadays neocon Washington Post was appalled.

Perhaps the Post should read some of the Nuremberg transcripts.

As Opinio Juris blogger and Melbourne Uni law professor Kevin Heller point out, a nearly identical prosecution succeeded after WW II.

Scott Horton also found Nuremberg precedents relevant.

Brian Tamanaha has more on Padilla v Yoo.

As he points out, tax lawyers were recently indicted by the Justice Department for providing the same sort of fraudulent advice.

The Wall Street Journal, quick to the defence of its columnist John Yoo, came up with a startling theory: the act of pursuing Yoo could lead to lawsuits against the Obama administration for its decision to close Guantánamo.

* * *

While Guantánamo detainees who have been held for as long as eight years are being released, the Obama administration continues to litigate habeas cases where it has no evidence.

One such case is that of Abdul Rahim al-Ginco.

He’s one of the men subjected to a second Combat Status Review Tribunal when the first one departed from script and found no combatant status.

In fact, al-Ginco was an opponent of the Taliban regime and had been their prisoner. Andy Worthington has the history.

To date most of the detainees (75 percent) have been found not to be “terrorists” when, after years of government obstruction, their habeas cases were considered on the merits.

Even a Republican loyalist, Judge Richard Leon, has frequently felt compelled to find the men innocent.

In al-Ginco, Judge Leon ruled that the intervening imprisonment and mistreatment of a former Taliban or al-Qaida adherent by his own side ended his status as an “enemy combatant” detained in Guantánamo.

Or as Daphne Eviatar (pic) puts it, ”[al-Qaeda] torture broke the bonds of terrorist group membership”.

* * *

The US has been arguing the Leon principle in reverse in the habeas case of the innocent Chinese Uighurs.

They may have been our friends once, but then we mistreated them. Now they may be our enemies and dangerous.

While Mr Obama won’t bring any Uighurs to the US, four have been shipped to Bermuda.

Others are destined for Palau, where few want to go.

The Supreme Court finished its term without acting on the Uighurs’ petition for certiorari and the DC Circuit Court’s astonishing decision that immigration law trumps habeas corpus continues to bind district courts.

* * *

The CIA Inspector-General’s long-suppressed 2004 report on the Bush administration’s “interrogations” policy is due out soon and should have plenty to say about the psychologists who “designed” the system.

In The New Yorker, Jane Mayer says that Leon Panetta, the new CIA director, has fired the psychologists in question.

(Illo: Panetta, © New Yorker.)

The Firedoglake blog reports on the further adventures of the torture consultants, James Mitchell and Bruce Jessen.

Meanwhile, the ACLU is seeking the rest of the Justice Department’s torture memos.

The Emptywheel blog explains the ACLU’s latest FOI suit against DoJ, this time for the post-Hamdan memo by acting Office of Legal Counsel head Stephen Bradbury .

Apparently Bradbury attempted to evade the Geneva Conventions’ Common Article Three, or justify its violation, after the Supreme Court expressly ruled the Article applied.

John Yoo’s memo on the Convention Against Torture is also sought.

Not surprisingly, the American Civil Rights Union (a right-wing foil to the ACLU) thinks the recently-disclosed Bush DoJ torture memos (see my post of April 23) are just great

* * *

The hero of David Hicks’ case, his detailed military counsel Major Michael “Dan” Mori, is now Lt. Col. Mori and a military judge.

Unlike Charles Swift, the Navy officer who won the Hamdan case in the Supreme Court and was forcibly retired, Dan Mori was able to stick with the military until a new regime arrived.

In an interesting historical parallel, Col. Kenneth Royall (seen here), an Army Judge Advocate appointed by President Franklin Roosevelt to represent the WW II German saboteurs in the famous ex rel Quirin military commissions case, also exceeded his brief.

Against orders, and in the face of presidential opposition, Col. Royall took the case to the Supreme Court, challenging the legality of Roosevelt’s commissions.

Brig. Gen. Royall became Harry Truman’s Secretary of War.

Robert Fitch

Roger Fitch Esq • June 9, 2009

Our Man in Washington

President Obama says he wants to close Guantánamo Bay … This Konzentrationslager was flawed from the start … There was no law to support the “enemy combatant” regime … Roger Fitch tracks the fate of some of the better known detainees

Now that Barack Obama is settling into the daunting task of returning the US to a constitutional democracy, perhaps it’s a good time to reflect on the fate of Guantánamo prisoners, individual victims of George Bush’s comprehensively illegal project.

Guantánamo was set up in January 2002 as a Konzentrationslager for foreign opponents of the Bush administration.

Leaving aside cases of innocence and mistaken identity (e.g. prisoners for whom a bounty was paid to the Pakistanis, no questions asked), a great many of the detainees are now known to have been merely hostile to the US or “uncooperative” – hardly grounds for imprisonment, war or no war.

These “security detainees” were labelled “enemy combatants” in a crude but ultimately futile effort to apply the law of war in a perverted form cherry-picked by the Bush administration.

That the entire project was extralegal in conception as well as execution is something that no one, including Mr Obama, has had the courage to tell the American people.

Seven-and-a-half years later the public still operates under the false premise that the prison for “terrorists” was somehow legislated by Congress, authorised by judicial precedents or justified under international law.

In fact, no such category as “enemy combatants” existed until the US government “coined” it, as the Pentagon still confesses on its Gitmo web page.

A recent law review article examined the tortured history of the “EC” expression, now abandoned by the Obama administration.

Except for the Afghans, the detainees have all been from countries with which the United States is not at war and so are not in fact “enemies” of the US in any customary reading of the law of war.

In fact, most of them have never been combatants against the US or its allies.

According to the respected Seton Hall reports, which are studies based on the Pentagon’s own sources, only five percent of the men were apprehended in Afghanistan by US forces.

Attention has been paid to the shopkeepers, shepherds and peasant farmers, but at least three of the detainees were medical doctors.

The US government has taken the position that, the Hippocratic oath notwithstanding, doctors who provide medical assistance to the enemies of the US are also enemies of the US.

There were also journalists, a UK law student, an accredited Afghan diplomat, a member of the Bahraini royal family, employees of legitimate charities, representatives of the present Afghan government and even anti-Taliban fighters – actual enemies of the Taliban regime.

So where are these prisoners today? Those, for instance, who gave their names to notorious military commissions and famous Supreme Court cases?

As we know, the Saudi Yasir Hamdi was able to bail out with a Louisiana birth certificate. Australian Mamdouh Habib got a get-out-of-jail card for having been tortured by Egyptians at American request.

David Hicks and Salem Hamdan returned to Australia and Yemen respectively after commission “trials” which would never have survived appeals.

The Sudanese Sami Al Hajj, a professional journalist held at Guantánamo, is back at work with Al Jazeera.

In Britain, the recently released Binyam Mohammed is still fighting the Obama-backed UK government in the courts and Gitmo grad Moazzam Begg is helping design computer games about his prison days.

The Tanzanian Ahmed Ghailani is headed for US District Court in New York where he has been under a perfectly valid indictment since 1998 for the East African embassy bombings.

Of course, Ghailani would have been in New York years ago but for his CIA/Guantánamo detention, a point his civilian lawyer has been trying to make without success.

Bush administration lawyers surely knew they were required to turn indicted criminal defendants over to US District Courts, not warehouse them at CIA or military prisons, mistreat them and question them by force.

The Miami Herald has more to say about this.

Finally, there is the Bosnian-Algerian Lakhdar Boumediene (pic). His case offered a partisan Republican – DC District Court Judge Richard Leon – an irresistible opportunity to subvert a Supreme Court decision uncongenial to the Bush administration.

When the Supreme Court remanded the Guantánamo habeas cases following its 2004 Rasul decision, Leon alone flouted the court’s ruling.

The result was the Supreme Court’s historic 2008 Boumediene decision.

On the second Supreme Court remand of Boumediene’s case, Leon finally relented, looked at the facts, and found no evidence to support detention.

Subsequently, the French government agreed that Boumediene could settle in France. In May, Boumediene was released, and he’s talking about his ordeal.

Remember Mohamed Jawad? He’s the Afghan teenager taken to Guantánamo for allegedly throwing a hand grenade at American soldiers occupying his country – a previously unknown “war crime”.

The eloquent argument of military defence counsel David Frakt (pic) before Jawad’s military commission has become famous.

Judge Stephen Henley, the military commission judge, threw out Jawad’s confessions as coerced, yet Jawad is still detained and it’s now claimed he was 12, not 16 or 17 when he was arrested.

The military defence lawyers in Jawad’s shocking case – his military prosecutor Darrel Vandeveld quit in protest – are presently attacking Jawad’s extralegal extradition in an appeal to the Afghan Supreme Court.

The Uighurs – an ethnic Muslim minority from China’s Xinjiang province – are still locked up, despite the fact that numerous courts have ruled they are entitled to release. Even the government has conceded they are detained illegally.

Government lawyers have filed a brief in the Supreme Court opposing the Uighurs’ petition for certiorari, but the Obama administration seems likely to admit some of the Uighurs to the US on a “grace and favour” basis.

* * *

Meanwhile, the last of the “enemy combatants” unlawfully confined by the Bush regime in stateside military prisons will soon be legally locked away.

“Sleeper cell” member Ali Saleh Al-Marri, will join José Padilla in a US high security prison.

Perhaps surprisingly, Al Marri’s guilty plea was for a real crime.

Journalist Andy Worthington and the Washington Independent have more

David Speaks Out...

WASHINGTON, DC – The lead attorney for the Kuwaiti detainees at Guantanamo Bay today called on Congress to delay the confirmation hearings for Supreme Court nominee Sonia Sotomayor until the Obama administration’s commitment to the rule of law and compliance with Supreme Court decisions is examined.

The Supreme Court, in an historic decision one year ago this week, upheld the right of Guantanamo detainees to the writ of habeas corpus. Yet, despite the Supreme Court’s admonition that the detainees be given “prompt hearings,” only a handful of these cases have been heard because of the government’s stall tactics, delays and determined resistance.

“I am writing to ask that you schedule a Judiciary Committee hearing on the Obama Administration’s failure to comply with Boumediene v. Bush, in which the Supreme Court upheld the right of Guantanamo detainees to the writ of habeas corpus, before you schedule a Committee hearing on the confirmation of President Obama’s nominee to the Supreme Court,” attorney David Cynamon wrote today in a letter to Judiciary Committee Chairman Patrick Leahy (D-VT).

The Obama administration, which promised to restore the rule of law and depart from the Bush administration’s legacy on detainee issues, has so far failed on both counts, according to Cynamon.

“The Bush Administration Department of Justice did everything in its power to delay and obstruct the habeas cases from proceeding in federal court. This was disappointing but not surprising,” Cynamon wrote. “What has been surprising is that the Obama Justice Department has maintained the same policy of delay and obstruction.”

Cynamon also noted that frustration at the government’s delays is shared by at least one federal judge, Colleen Kollar-Kotelly, who ordered a government lawyer removed from the Kuwaitis’ case for repeatedly failing to comply with court-ordered deadlines.

In April, Cynamon wrote to Attorney General Eric Holder asking him to intervene in the Kuwaitis’ case and put an end to the administration’s continued obstruction and delays.

“We ask you to apply the same professional standards you displayed in Senator Stevens’ case…and make clear to all of the Department’s attorneys – line and supervisory – that they must comply with, not obstruct, the Supreme Court ruling that the Guantanamo petitioners are entitled to prompt and fair hearings,” Cynamon wrote to Holder on April 13, 2009.

To date, Holder has not responded to Cynamon’s letter.

Currently, four Kuwaitis remain in Guantanamo, where they have been imprisoned for nearly eight years. Their habeas hearings, to which the Supreme Court on June 12, 2008, ruled they are entitled, have yet to be scheduled following months of delays and obstructions by the Obama administration.

Attached is a copy of Cynamon’s letter to Sen. Leahy, a copy of Cynamon’s letter to Attorney General Holder and Judge Colleen Kollar-Kotelly’s ruling criticizing the government’s handling of the Kuwaitis’ case.

About the Kuwaiti Family Committee:

The Kuwaiti Family Committee’s mission is to seek justice for the remaining Kuwaiti detainees at Guantanamo Bay. The organization is led by Khalid Al-Odah, the father of Guantanamo detainee Fawzi Al-Odah, and includes in its membership approximately 100 relatives of the prisoners. They are only asking for due process of law for their fathers, brothers, and sons, including speedy proceedings either to release them or to charge and try them in a fair process.

# # #

starve 'em too

...

Steven Bradbury, chief of the Justice Department’s Office of Legal Counsel in during George W. Bush’s second term, provided an overview of an authorized CIA technique to manipulate detainee’s diets in order to make them receptive to interrogation. Using references to calories, Bradbury wrote in a May 10, 2005 memo, “[T]he recommended minimum calorie intake is 1,500 kcal/day, and in no event is the detainee allowed to receive less than 1,000 kcal/day.” While having his diet restricted, a detainee would be fed not solid food, but “commercial liquid diets (such as Ensure Plus).” The restricted diet, according to Bradbury’s memo, would be subject to “frequent medical monitoring,” and a detainee would be measured “weekly” to ensure that he did not lose more than “10 percent of his body weight,” which would trigger termination of the diet.
That caloric intake would be unacceptable for the Justice Department to administer to an inmate in a federal prison. The department’s Bureau of Prisons requires federal prisons to adhere to “the Daily Reference Intake (DRI) for nutrients published by the Food and Nutrition Board of the National Academy of the Sciences” in order to “ensure proper nutrition,” according to the bureau’s 2006 policy handbook. The National Academy of the Science’s Dietary Reference Intakes estimates nutritional requirements on a sliding scale depending on Body Mass Index and level of activity. But for adult men who stand just under five feet tall and who maintain a “sedentary” level of physical activity with a low body mass index, the minimum caloric requirement in the guideline is 1,848 calories. All other nutritional elements of the guideline require greater caloric intakes for adult men, ranging from 2,000 to 3,720 calories.
States maintain different standards but hover around that range. In 2003, controversy resulted whenTexas cut the caloric requirement for its inmates to 2,500 calories per day from 2,800 in order to close a budget shortfall.
“For men, you’re going to need at least 2,100 [calories], for most men, and probably 2,300 for weight maintenance,” said Katherine Tallmadge, a dietician who runs Personalized Nutrition, a weight-management company in Washington. “For most women, 1,500 is a weight loss level. And so for most men, 1,800 is a weight loss level. A thousand or 1,500 is extremely low for a man.” The weight-management formula used by the CIA and listed in the OLC memo appeared to Tallmadge to be “a little low” compared to industry standards.
Adult men “should be taking 2,000 to 3,000 [calories] a day, based off of activity level,” said Angela Ginn-Meadow, a dietician with the Joslin Diabetes Center in Baltimore. “Anything below 1,200 calories a day can put you at risk of malnutrition, vitamin and mineral deficiency.” Both Tallmadge and Ginn-Meadow are national spokeswomen for the American Dietetic Association.
“It’s not starvation, but it’s problematic,” agreed Scott Allen, a Rhode Island-based doctor and medical adviser to Physicians for Human Rights. Allen said that his middle-aged male patients who exhibit an active lifestyle are often placed on a 2,000-calorie daily intake “as a weight loss diet.”
Bradbury’s 2005 memo, declassified on April 17 by the Obama administration, explained that the CIA believed manipulating a detainee’s diet “makes other techniques, such as sleep deprivation, more effective.” Applied in practice, the CIA induced sleep deprivation on detainees by restraining them in “stress positions,” such as shackling their ankles to a cell floor and their wrists from the ceiling. The former OLC chief further wrote in a footnote that the fact that commercial weight loss programs “employ diets of 1,000 kcal/day for sustained periods” was “instructive in evaluating the medical safety of the interrogation technique.” He allowed that “detainees subject to dietary manipulation are obviously situated differently from individuals who voluntarily enage in commercial weight-loss programs.” Bradbury is not a doctor.
The CIA would not discuss the genesis of its caloric guidelines. But an official familiar with the former interrogation program pointed to the memo’s footnote about commercial weight-loss programs in the U.S. containing 1,000 calories per day. “The 1,000 figure was for short-term use only,” the official said. “While there are obvious differences between a dieter and a detainee, any suggestion of starvation would be flat wrong.”
Emily Siegel, a Baltimore-based nutritional counselor who works with trauma victims, said that while the detainees’ physical activity would not be high during interrogation, “the stress their bodies are under is tremendous,” requiring more calories than the CIA program allowed.
Orlando Ticon, a survivor of torture directed by former Philippine dictator Ferdinand Marcos, described what dietary manipulation feels like. “The main thing was you never knew when you were given food,” said Ticon, who now works with a torture survivors’ support group known as TASSC International. “For me, I was blindfolded and hogtied for about three months. For the first weeks, I was not allowed to feed myself. Someone was feeding me, literally,” but without any predictability of when he would receive food.
In the long term, Ticon said, torture survivors experience a lingering lack of appetite, associated with post-traumatic stress disorder. “Some survivors lose a taste for food because it’s identified for them with prison,” he said. “Like certain types of food, like dried bread, tea, things like that.” Torture survivors he has interviewed “don’t eat regularly and have no appetite for food.”
Detainees who had been subjected to the CIA’s detention program described being subjected to the regimen for weeks in a 2007 report by the International Committee of the Red Cross. Khalid Shaikh Mohammed, the architect of the 9/11 attacks, said he was not provided “with any solid food apart from on two occasions as a reward for perceived cooperation,” and fed only Ensure. “If he refused to drink then his mouth was forced open by a guard and the Ensure was poured down his throat,” the report states. Mohammed claimed to the Red Cross that his weight dropped from 78 kilograms, or 171 pounds, to 60 kilograms, or 132 pounds, after the month-long regimen of dietary restriction. If true, that would amount to a loss of about 23 percent of Mohammed’s body weight — more than twice the amount that, according to Bradbury’s memo, should have stopped the dietary-restriction regimen.