By William Fisher
Last month, the U.S. Muslim World Advisory Committee of the United States Institute of Peace sat down for a talk with Secretary of State Condoleeza Rice and Under-Secretary of State for Public Diplomacy Karen Hughes. These are the kinds of meetings Arab-American and other Muslim-American groups have been having throughout the country with U.S. officials at various levels of government since soon after 9/11.
These meetings usually end with oh-so-diplomatic remarks about the "full and frank exchanges of views" and praiseworthy statements from each about each.
Yet, though Arab-American and other Muslim organizations are reluctant to discuss the issue for the record, they tell me privately that they are worried that the Bush Administration is sending dangerously mixed signals precisely to those whose "hearts and minds" it claims to be trying to win.
Consider the following:
President Bush continues to assert that Arabs and other Muslims are valued and contributing members of American society. He denies that his Global War on Terrorism is a war against Islam. Secretary Rice and Ambassador Karen Hughes spend substantial time with Arab-American and other Muslim advocacy groups, reasserting their "mission" to reach out to these communities. The FBI, CIA, the Departments of Homeland Security, Defense, State, and other U.S. government agencies spend millions to recruit members of these communities to apply for jobs, then deny them security clearances because they have relatives in the Middle East. Then Ms Hughes takes off on another of her "listening tours" of the Middle East, promising to reach out to "Muslim Moms".
At the same time, the FBI and the DHS continue to practice racial profiling and to harass and prosecute Arabs and other Muslims here at home. The FBI's Joint Terrorism Task Forces work with local law enforcement to snoop on Arab and Muslim communities and wiretap mosques. We tell the Arabs we don't want them running our ports. And legitimate Muslim charities can't raise a nickel without fear of being put on the government's "support for terrorists" list.
Which of these contradictory messages do you think resonates most loudly in the U.S.? Just take a look at the myriad of polls that measure the degree of pervasive insecurity among these constituencies at home, and attitudes of other Americans toward these minorities! The common denominator is fear, one of the other. And fear breeds intolerance and even violence.
Why should we care what Arab- and Muslim-Americans think and what we, their neighbors, think of them? For one thing, they're Americans. They live here, among us. They are business and labor leaders, clergymen, sports figures, engineers and mathematicians and physicists, teachers, doctors and nurses, ordinary working citizens, even members of Congress.
Secondly, their ties to family and friends in other countries can provide us with important bridges to understanding. They might just be capable of helping Karen Hughes to explain U.S. policies to parts of the world we desperately need on "our side". Or to better understand how the "other side" sees us.
Thirdly, Arab- and Muslim-Americans vote. And that, if nothing else, ought to capture the attention of our elected officials.
Finally, how our government acts toward these sizable minorities helps shape how the rest of us act.
Jingoism has no good consequences, for anyone.
No one ever said that balancing these competing interests would be easy. Terrorists in our midst must be identified and prosecuted. So must so-called charities that illegally use their organizations as fronts for laundering material support for those who would harm us and our allies.
At the same time, there is zero evidence that Arab- and Muslim-Americans are anything but loyal to our country, and just as horrified as the rest of us by the attacks of 9/11. Thousands of these hyphenated Americans are now serving in the U.S. armed forces, many of them in Iraq and Afghanistan. And how many terror-related convictions resulted from the mass roundups of Arab and Muslim men in the weeks following 9/11? None.
Yet there appears to be no consistent effort anywhere in the upper reaches of the Bush Administration to engage these communities or to explain or coordinate what much seem to them as grossly contradictory and conflicting efforts.
Which should make us wonder whether this is about ideology: the "clash of civilizations? Or about creating smokescreens: blaming the media for not reporting all the "good news" from Iraq? Or about more of the unbelievably uncoordinated incompetence that gave us the Katrina disaster? Or about the political tone-deafness that resulted in Harriet Myers?
The short answer is "I don't know". Maybe a bit of all.
What I do know is that this is an issue on which George W. Bush has shown a somnambulistic failure of leadership. It is not enough for the president from time to time to tell Arab-Americans and other Muslim minorities - and the rest us - that he values our citizenship. It is not enough for him intermittently to reassure Muslims - and attempt to assure the rest of us -- that we are not at war with Islam.
At the very least, there needs to be high-level, visible, and transparent interest in worrying about the mixed signals we're sending. It can't be left to Karen Hughes alone. There is only one person who can get this done: the president.
So, Mr. Bush, here are two modest but doable suggestions:
First, you should appoint a permanent high-level advisory body to keep the administration informed about what Arab- and other Muslim-Americans are thinking, feeling, and doing about what they see as problems between their communities and government, and how other Americans see the same picture. This body should advise you about perceptions and misperceptions and how to address both with honesty and clarity. It should include thoughtful representatives of these communities, clergy of all faiths, private sector representatives, members of both political parties, and senior members of the Departments of State, Homeland Security, Defense, Justice, and the FBI and CIA.
But without the machinery to act on its findings and recommendations, this will be just another of thousands of government advisory bodies. It needs teeth. Talented people who know how to do implementation.
So, Mr. President -- notwithstanding that government is historically a notoriously flunked communicator - you are surrounded by some very smart people and could have some of the world's most adept professional communicators at your service instantly. These experts should convince you to take Arab-American alienation very seriously and to mobilize whatever public and private sector resources you need to craft honest messages and make sure they get heard.
Without your leadership, these steps will be - and be seen to be -- little more than cosmetics. Only you can make them important. You need to reach out in a powerful and consistent way to explain to Arab-Americans and other Muslims - and their neighbors, all the rest of us -- the contributions made by these populations over many years. Instead, your silence will only metastasize the uninformed and unreasoning Islamophobia that is rapidly become implanted in our national genetics. And, at the same time, you need to tell the Arab- and Muslim-Americans, and our population at large why it's important for law enforcement to do what it does to protect us (hopefully, while reigning in their over-zealousness to prosecute).
This dialogue is partly about policy, but it is equally about better coordination within government, about better public-private partnerships, to actually carry out a sustained program of thoughtful, grown-up, no-spin communication.
There's a lot you can do about that. As long as you think it's important. And as long as you're prepared to listen.
Tuesday, April 04, 2006
AND THIS GUY WANTS TO BE PRESIDENT?
By William Fisher
This week, we got yet another pitiful lesson in just how craven wanabee presidential hopefuls will be in pandering to their “base” – and how little some of them understand about how to wage and win the “Global War on Terror”.
The lesson came from Senator George Allen, the former Republican governor of Virginia, who is widely reported to be seeking his party’s nomination for president in 2008.
Senator Allen wrote to Defense Secretary Donald Rumsfeld to recommend 3-star general Jerry Boykin to be the new head of the Army’s Special Operations command.
For those of you with political amnesia, this is the same Jerry Boykin who appeared in dozens of Christian evangelical churches – often in uniform – to deliver himself of such utterances as:
About his battle with a Somali (Muslim) warlord: “I knew that my God was bigger than his God. I knew that my God was a real God and his was an idol.”
About the Global War on Terror: “America’s enemy is “a spiritual enemy ... called Satan.” The enemy will only be defeated, he added, “if we come against them in the name of Jesus…We in the army of God, in the house of God, kingdom of God have been raised for such a time as this… The enemy will only be defeated, he added, “if we come against them in the name of Jesus…We in the army of God, in the house of God, kingdom of God have been raised for such a time as this."
About radical Muslims: “Why do they hate us so much? …The answer to that is because we're a Christian nation."
About President Bush: "He's in the White House because God put him there."
Boykin’s incendiary remarks drew predictable praise from Christianity’s loony fringe -- the likes of Pat Robertson, Jerry Falwell and James Dobson.
And his introduction of Crusader 101 language into the GWOT in 2002 and 2003 brought equally predictable outcries from the Muslim-American and Arab-American communities, as well as from a ton of more moderate Christian leaders and human rights advocacy groups.
So, when the Pentagon finally caved and opened an investigation, it gave Gen. Boykin a sharp slap on the wrist. It found that he violated regulations by failing to make clear he was not speaking in an official capacity when he made the speeches, sometimes wearing his Army uniform, and that Boykin violated Pentagon rules by failing to obtain advance clearance for his remarks.
The reprimand had dire consequences. Boykin is still the Pentagon's deputy undersecretary for intelligence.
Not to worry. After all, George Allen wants to be president.
So he wrote to Rumsfeld, “I am told, and I believe it to be true, that no special operations officer currently on active duty is more highly respected or admired by his superiors, peers or subordinates alike, than Jerry Boykin."
Allen’s letter said his confidence in Boykin's abilities overrides any
concerns about what may surface during confirmation hearings should the
administration nominate Boykin. Specifically, Allen mentioned the religious
statements as well as U.S. interrogation policies at the Guantanamo Bay prison, Abu Ghraib in Iraq and elsewhere.
"Granted, these are issues which (sic) cause discomfort. But I firmly believe the nomination of General Boykin to be important enough to take a stand," Allen wrote. The current commander of Special Operations, Army Gen. Bryan "Doug" Brown, is retiring.
The first term senator said his request to nominate Boykin had the support of "many of my colleagues here in the Senate" and those who have served with Boykin, given the general's extensive special operations resume, which includes the Army's Delta Force and service in the Somalia conflict.”
No doubt, though he didn’t name any of Boykin’s other supporters.
But, to his credit, one far more powerful Senate voice demurred. Virginia Sen. John Warner, the Republican chairman of the Armed Services Committee (of which Sen. Allen is not a member) said in a statement to the AP, "Senator Allen is entitled to his views. He did not consult with me on this matter, but this officer would not be among those whom I would recommend for this position."
Good for him!
But there is a much larger point here. Even if we forget what Gen. Boykin believes, the Muslim world will not. They remember Abu Ghraib. And they remember, as reported by the New Yorker’s Seymour Hersh, that the prison abuse scandal grew out of a decision to give greater influence to the Defense Intelligence unit, led by Stephen Cambone, the Under-Secretary of Defense for Intelligence -- and his deputy, guess who? Lt. General William G. “Jerry” Boykin.
They know all about the CIA’s private airline carrying out U.S. kidnappings of suspected terrorists and their “extreme renditions” to black hole prisons in Eastern Europe, and to such pillars of democracy as Egypt, Syria and a host of other hospitable venues.
They know all about the “diplomatic assurances” the U.S. gets from these countries, which routinely vow not to torture or abuse those we deliver into their gentle hands.
They know about Guantanamo Bay. They know about Bagram. They know about our then attorney general, John Ashcroft, rounding up anyone who looked like “a Middle Easterner” after the 9/11 attacks, convicting no one of any terror-related crime, but deporting many.
How do we know they know? We know because they tell us. In no uncertain terms.
Every time our hear-and-see-no-evil Secretary of State stilettos her way abroad, she gets an earful about precisely these issues. And when her sidekick, our newest public diplomacy maven, Karen Hughes, sets off on another of her tone-deaf “listening tours” of the Middle East to bond with “Muslim Moms”, what she hears is America is at war with Islam.
Even if she were qualified in public diplomacy, she has taken on an impossible job. The president has tasked her to persuade Arabs and other Muslims that he really means it when he describes them as people of peace and understands that Al-Qaida isn’t Islam.
But be not dis-encouraged. Stay the course. Mmes. Rice and Hughes will eventually be victorious in their long war because they’ll have the enthusiastic support of folks like George Allen – and Jerry Boykin.
This week, we got yet another pitiful lesson in just how craven wanabee presidential hopefuls will be in pandering to their “base” – and how little some of them understand about how to wage and win the “Global War on Terror”.
The lesson came from Senator George Allen, the former Republican governor of Virginia, who is widely reported to be seeking his party’s nomination for president in 2008.
Senator Allen wrote to Defense Secretary Donald Rumsfeld to recommend 3-star general Jerry Boykin to be the new head of the Army’s Special Operations command.
For those of you with political amnesia, this is the same Jerry Boykin who appeared in dozens of Christian evangelical churches – often in uniform – to deliver himself of such utterances as:
About his battle with a Somali (Muslim) warlord: “I knew that my God was bigger than his God. I knew that my God was a real God and his was an idol.”
About the Global War on Terror: “America’s enemy is “a spiritual enemy ... called Satan.” The enemy will only be defeated, he added, “if we come against them in the name of Jesus…We in the army of God, in the house of God, kingdom of God have been raised for such a time as this… The enemy will only be defeated, he added, “if we come against them in the name of Jesus…We in the army of God, in the house of God, kingdom of God have been raised for such a time as this."
About radical Muslims: “Why do they hate us so much? …The answer to that is because we're a Christian nation."
About President Bush: "He's in the White House because God put him there."
Boykin’s incendiary remarks drew predictable praise from Christianity’s loony fringe -- the likes of Pat Robertson, Jerry Falwell and James Dobson.
And his introduction of Crusader 101 language into the GWOT in 2002 and 2003 brought equally predictable outcries from the Muslim-American and Arab-American communities, as well as from a ton of more moderate Christian leaders and human rights advocacy groups.
So, when the Pentagon finally caved and opened an investigation, it gave Gen. Boykin a sharp slap on the wrist. It found that he violated regulations by failing to make clear he was not speaking in an official capacity when he made the speeches, sometimes wearing his Army uniform, and that Boykin violated Pentagon rules by failing to obtain advance clearance for his remarks.
The reprimand had dire consequences. Boykin is still the Pentagon's deputy undersecretary for intelligence.
Not to worry. After all, George Allen wants to be president.
So he wrote to Rumsfeld, “I am told, and I believe it to be true, that no special operations officer currently on active duty is more highly respected or admired by his superiors, peers or subordinates alike, than Jerry Boykin."
Allen’s letter said his confidence in Boykin's abilities overrides any
concerns about what may surface during confirmation hearings should the
administration nominate Boykin. Specifically, Allen mentioned the religious
statements as well as U.S. interrogation policies at the Guantanamo Bay prison, Abu Ghraib in Iraq and elsewhere.
"Granted, these are issues which (sic) cause discomfort. But I firmly believe the nomination of General Boykin to be important enough to take a stand," Allen wrote. The current commander of Special Operations, Army Gen. Bryan "Doug" Brown, is retiring.
The first term senator said his request to nominate Boykin had the support of "many of my colleagues here in the Senate" and those who have served with Boykin, given the general's extensive special operations resume, which includes the Army's Delta Force and service in the Somalia conflict.”
No doubt, though he didn’t name any of Boykin’s other supporters.
But, to his credit, one far more powerful Senate voice demurred. Virginia Sen. John Warner, the Republican chairman of the Armed Services Committee (of which Sen. Allen is not a member) said in a statement to the AP, "Senator Allen is entitled to his views. He did not consult with me on this matter, but this officer would not be among those whom I would recommend for this position."
Good for him!
But there is a much larger point here. Even if we forget what Gen. Boykin believes, the Muslim world will not. They remember Abu Ghraib. And they remember, as reported by the New Yorker’s Seymour Hersh, that the prison abuse scandal grew out of a decision to give greater influence to the Defense Intelligence unit, led by Stephen Cambone, the Under-Secretary of Defense for Intelligence -- and his deputy, guess who? Lt. General William G. “Jerry” Boykin.
They know all about the CIA’s private airline carrying out U.S. kidnappings of suspected terrorists and their “extreme renditions” to black hole prisons in Eastern Europe, and to such pillars of democracy as Egypt, Syria and a host of other hospitable venues.
They know all about the “diplomatic assurances” the U.S. gets from these countries, which routinely vow not to torture or abuse those we deliver into their gentle hands.
They know about Guantanamo Bay. They know about Bagram. They know about our then attorney general, John Ashcroft, rounding up anyone who looked like “a Middle Easterner” after the 9/11 attacks, convicting no one of any terror-related crime, but deporting many.
How do we know they know? We know because they tell us. In no uncertain terms.
Every time our hear-and-see-no-evil Secretary of State stilettos her way abroad, she gets an earful about precisely these issues. And when her sidekick, our newest public diplomacy maven, Karen Hughes, sets off on another of her tone-deaf “listening tours” of the Middle East to bond with “Muslim Moms”, what she hears is America is at war with Islam.
Even if she were qualified in public diplomacy, she has taken on an impossible job. The president has tasked her to persuade Arabs and other Muslims that he really means it when he describes them as people of peace and understands that Al-Qaida isn’t Islam.
But be not dis-encouraged. Stay the course. Mmes. Rice and Hughes will eventually be victorious in their long war because they’ll have the enthusiastic support of folks like George Allen – and Jerry Boykin.
Tuesday, March 28, 2006
NOT A COUNTRY ANYMORE
By William Fisher
Think about contractors in Iraq, and what’s the first thing that comes to mind? Halliburton, raking in billions and overcharging taxpayers by billing the government for stuff it forgot to deliver, and then getting bonuses for almost all its questionable charges? The Lincoln Group, paying Iraqi journalists to plant “good news” stories in the press? The Pentagon’s private army of outsourced “security specialists”, like Blackwater and Custer Battles, the mercenaries whose greed and shameful tactics make the CIA look like choirboys?
You’d be right. And wrong.
Wrong because what you probably don’t know is that these miscreants are not the only contractors there. There is also a not-nearly-large-enough cadre of contractors who don’t make millions.
Most of them work for USAID – the much-maligned U.S. Agency for International Development. They are both Americans and Iraqis – Shia, Sunni, Kurd. And they work side by side every day, in an environment of chaos, fear and violence, risking their lives trying to improve the lives of ordinary Iraqis.
That they make any progress at all in that kind of environment is truly remarkable. But they do make progress. And that may be the only piece of legitimate “good news” coming out of what can now only be described as “not a country anymore”.
I get a near-free pass today, because the rest of this column has been written by one of those unsung heroes -- a dear friend who heads a sizable economic development team. But I cop out with sadness. Here’s the email he sent me this morning (slightly edited to protect identities):
“I just now talked to my security manager in Baghdad, and am left speechless. He describes a complete breakdown of law and order. We reviewed our staff list to determine each individual's circumstances. One guy, Ahmed, has his brothers stay with him at night. They take turns sleeping in case someone attempts to break into his home. Abdullah is the same. He and his father alternate sleeping at night, three hours on and three hours off. Walid and his family live in Sadr City where violence has once again brought tragedy to large numbers of families.
“On and on, one by one, we discussed all of our people. All are scared. None of these friends is specifically targeted, so there is nothing for us to do except hope that they do not become victims of random and senseless violence. The most common words are death, kidnapping, injury and danger. Iraq, especially Baghdad, is not a country any more. It is hell.
“I am beyond angry, and only feel a deep sadness. The optimism we felt in 2003 and early 2004 has been replaced by despair and wretchedness -- there is no longer even a thread of hope to hang onto.
“In early 2005, after the first election, we thought maybe there was a future. I made several trips to Baghdad, to meet with USAID and one of the government ministers. While my movements were proscribed, I managed to go out to lunch a few times, though mostly I stayed in the minister’s house. Now, even that bit of travel would be out of the question.
“A good portion of my job is to be strong in the face of these risks, to be the rock for others to vent their fears and sadness. There are days when the emotional side of this job overwhelms me, when I feel like I cannot take yet another tragedy. I am not overwhelmed often, but today happens to be one of those days. After writing this I will feel better, and I will go on to the next meeting or conference, or fix the next problem.
“The outrage of the Bush Team blaming the media for imbalanced reporting is unconscionable. They are nothing but a gang of liars, try to spin a civil war and a huge snafu of their creating into progress. And while some in the media are starting to acquire a hit of courage, thank God we have Helen Thomas, who will continue to pound away.
“Exactly why did we go to war? And why did we not fight to win it? I can only shake my head.”
And I can only join him in the head-shaking. Because I don’t know the answers to his questions. Nor does anyone else except perhaps George W. Bush. And he’s not telling.
Think about contractors in Iraq, and what’s the first thing that comes to mind? Halliburton, raking in billions and overcharging taxpayers by billing the government for stuff it forgot to deliver, and then getting bonuses for almost all its questionable charges? The Lincoln Group, paying Iraqi journalists to plant “good news” stories in the press? The Pentagon’s private army of outsourced “security specialists”, like Blackwater and Custer Battles, the mercenaries whose greed and shameful tactics make the CIA look like choirboys?
You’d be right. And wrong.
Wrong because what you probably don’t know is that these miscreants are not the only contractors there. There is also a not-nearly-large-enough cadre of contractors who don’t make millions.
Most of them work for USAID – the much-maligned U.S. Agency for International Development. They are both Americans and Iraqis – Shia, Sunni, Kurd. And they work side by side every day, in an environment of chaos, fear and violence, risking their lives trying to improve the lives of ordinary Iraqis.
That they make any progress at all in that kind of environment is truly remarkable. But they do make progress. And that may be the only piece of legitimate “good news” coming out of what can now only be described as “not a country anymore”.
I get a near-free pass today, because the rest of this column has been written by one of those unsung heroes -- a dear friend who heads a sizable economic development team. But I cop out with sadness. Here’s the email he sent me this morning (slightly edited to protect identities):
“I just now talked to my security manager in Baghdad, and am left speechless. He describes a complete breakdown of law and order. We reviewed our staff list to determine each individual's circumstances. One guy, Ahmed, has his brothers stay with him at night. They take turns sleeping in case someone attempts to break into his home. Abdullah is the same. He and his father alternate sleeping at night, three hours on and three hours off. Walid and his family live in Sadr City where violence has once again brought tragedy to large numbers of families.
“On and on, one by one, we discussed all of our people. All are scared. None of these friends is specifically targeted, so there is nothing for us to do except hope that they do not become victims of random and senseless violence. The most common words are death, kidnapping, injury and danger. Iraq, especially Baghdad, is not a country any more. It is hell.
“I am beyond angry, and only feel a deep sadness. The optimism we felt in 2003 and early 2004 has been replaced by despair and wretchedness -- there is no longer even a thread of hope to hang onto.
“In early 2005, after the first election, we thought maybe there was a future. I made several trips to Baghdad, to meet with USAID and one of the government ministers. While my movements were proscribed, I managed to go out to lunch a few times, though mostly I stayed in the minister’s house. Now, even that bit of travel would be out of the question.
“A good portion of my job is to be strong in the face of these risks, to be the rock for others to vent their fears and sadness. There are days when the emotional side of this job overwhelms me, when I feel like I cannot take yet another tragedy. I am not overwhelmed often, but today happens to be one of those days. After writing this I will feel better, and I will go on to the next meeting or conference, or fix the next problem.
“The outrage of the Bush Team blaming the media for imbalanced reporting is unconscionable. They are nothing but a gang of liars, try to spin a civil war and a huge snafu of their creating into progress. And while some in the media are starting to acquire a hit of courage, thank God we have Helen Thomas, who will continue to pound away.
“Exactly why did we go to war? And why did we not fight to win it? I can only shake my head.”
And I can only join him in the head-shaking. Because I don’t know the answers to his questions. Nor does anyone else except perhaps George W. Bush. And he’s not telling.
Monday, March 27, 2006
Biscuits, anyone?
By William Fisher
"Press Office", chirped the Defense Department voice on the phone.
"Yes, good morning. My name is Bill Fisher. I write for Truthout. I have a couple of questions about the Biscuit program. Would you be able to help me?"
"What are Biscuits?" said a confused voice.
"They are military shorthand for Behavioral Science Consultation Teams", said I.
"Let me connect you with the person who knows about that program," said the helpful voice.
Pause.
Then came an answering machine. "This is Jane Doe (I am not using her real name because I might get her in trouble). Please leave your name and phone number and the nature of your question, and I'll call you back", said the disembodied voicemail message.
I did, adding that I wanted to file a story today. Then I waited. And waited. And waited some more.
Altogether I called three times, each time being referred either to a different person (who was away from his/her desk), or to another automated voice mailbox, where I left the same message.
The questions I never got to ask anyone at DOD were:
"I'd like to know whether BISCUIT units are working at Abu Ghraib and Bagram and other U.S.-controlled detention centers as well as at Guantanamo", and "Some folks who are in the medical and other health-provider fields have been critical of the BISCUITS at Guantanamo Bay, saying they have been using doctors and nurses and psychologists to help the interrogators get information out of the detainees, and advising about how best to keep people alive who are on hunger strike there."
Now, if my name happened to be Bob Woodward or Jane Mayer or Sy Hirsch or Walter Pincus or Jim Risen, I suppose I could have called a "high level official close to the Bush Administration", who might speak "on condition of anonymity".
But I wanted to discover whether a plain vanilla working stiff journalist - and taxpayer -- could actually get some information on a sensitive subject from a famously secretive government.
I guess I got my answer. The silence was deafening.
Now, just in case you've been living on Pluto for the past year or so, BISCUITS -- Behavioral Science Consultation Teams - consist of military psychiatrists, psychologists, behavioral scientists, and other healthcare professionals. Their role, it has been charged by former Guantanamo interrogators, is to advise them on ways of increasing psychological duress on detainees, sometimes using their medical records to find ways of exploiting their fears and phobias, to make them more cooperative and willing to provide information.
In one example, published in the New York Times, "interrogators were told that a detainee's medical files showed he had a severe phobia of the dark and suggested ways in which that could be manipulated to induce him to cooperate."
The DOD has said that there is very limited access to prisoners' medical records. But many members of the healthcare community remain skeptical.
An article in the New England Journal of Medicine said interviews with doctors who helped devise and supervise the interrogation regimen at Guantánamo showed that the BISCUIT program was explicitly designed to increase fear and distress among detainees as a means to obtaining intelligence.
And between July 2003 and March 2004, a doctor was allegedly "pressured by OGA personnel into filling out death certificates on Iraqi detainees" though the doctor was not given the opportunity to examine the bodies. The causes of death given for two detainees were later found to be inaccurate. The term "OGA" (Other Government Agencies) is generally used to refer to the CIA.
After April 2003, when Defense Secretary Donald H. Rumsfeld tightened
rules on detainee treatment, one interrogator said detainees' medical records had to be obtained through BISCUIT team doctors, but that the doctors always obliged. The former interrogator said the BISCUIT team doctors usually observed interrogations from behind a one-way mirror, but sometimes were also in the room with the detainee and interrogator.
The biscuit teams were also central, the former interrogators told the New York Times, in devising strategies like "Operation Sandman," in which a detainee's sleep patterns were systematically interrupted several times a night.
Then there is the issue of the "autonomy" of a doctor's patients. That refers to a patient's fundamental right to decide which medical interventions he will permit. That well-established canon of medical ethics requires that a detainee who is on a hunger strike has the "autonomy" to remain on a hunger strike if that's what he wants. If one is a healthcare provider, the patient is a patient whether or not he's a prisoner. Which means that medical personnel are barred from forcing a prisoner to stay alive, or advising others about how to reach that objective.
So, to return to my unanswered questions to the DOD: Have the BISCUITs changed at all as a result of criticism from civilian medical and other healthcare authorities? And are they being used elsewhere?
As to the "elsewhere" question, what we know is that Maj. Gen. Geoffrey Miller, the former commander at Guantanamo, recommended the use of BSCT teams at Abu Ghraib when he was sent there to "GITMO-ize" it in August and September of 2003. According to the testimony of those who were at Abu Ghraib, psychologists were indeed involved in the interrogations and abuses of detainees.
Gen. Miller recently invoked his right against self-incrimination in a case of two soldiers accused of using dogs to intimidate detainees at Abu Ghraib. This invocation was the first sign by Miller that he might have information that would implicate him in the abuses in Iraq. Numerous reports indicate that Miller instituted the use of dogs to intimidate prisoners at Abu Ghraib after first using the technique at Guantanamo Bay. A military investigation recommended that Gen. Miller, who is soon to retire, be reprimanded, but a higher-ranking officer denied the request.
And a senior human rights attorney told me on condition of anonymity, "I would suspect since the BSCTs continue to be used as part of the intelligence apparatus at Gitmo" and because have been judged favorably by the military establishment "they are likely in place at the very least at strategic interrogation facilities in Iraq and in Afghanistan."
As to changes in the way the BISCUITs operate, the DOD finally issued revised guidelines last June, after various healthcare professional organizations and prominent medical authorities ignited a firestorm of criticism. Both the American
Psychological Association and the American Psychiatric Association have
made clear that it is unethical for members of their profession -- whether in the military or not -- to participate interrogations or to provide information to interrogators about ways to "break" a detainee.
Dr. William Winkenwerder Jr., assistant secretary of defense for health affairs, acknowledged that the new guidelines came about as the result of a review of procedures begun after allegations of medical personnel assisting in abusing prisoners surfaced. "What got the ball rolling was an awareness from all the information coming out of Abu Ghraib and the various allegations," he said.
Some of the most passionate of these allegations have come from Brigadier General Stephen N. Xenakis, M.D., who retired from the U.S. Army in 1998, after serving in many high-level positions, including Commanding General of the Southeast Regional Army Medical Command. He has reportedly played a major role in driving the DOD to re-examine its medical practices.
Last month he said: "Medical officers enjoy special privileges and status and are expected to abide by and stand up for their professional principles at all times and in all situations. This operation - the War on Terror - is no different... It is important to remember that the burden of leadership is to ensure that high moral and ethical practices are maintained in even the most demanding situations."
But, speaking about prisoner deaths while in U.S. custody, Gen. Xenakis charged, "To date, we have no indication that either the Army Medical Department or the Office of the Assistant Secretary of Defense for Health Affairs has conducted a thorough investigation of the medical care provided to detainees and the circumstances surrounding the known deaths."
The new guidelines, said Dr. William Winkenwerder Jr., assistant secretary of defense for health affairs, consolidates "principles and procedures for U.S. military medical personnel when working with detainees under control of U.S. armed forces."
The guidelines specify that military medical personnel must observe medical ethics, make medically appropriate decisions, and report inhumane treatment. Military healthcare professionals must "be guided by professional judgment and standards similar to those that would be applied to members of the U.S. armed forces, including duty to protect the physical and mental health of the detainee" and "will not participate in any activity that is not consistent with applicable law."
But in a briefing for reporters, Winkenwerder declined to say whether the guidelines would prohibit some of the activities described by former interrogators and others. He said the medical personnel "were not driving the interrogations" but were there as "consultants".
Winkenwerder added that "only a very, very small number of reports of observation of possible abuse" have been recorded. Pentagon officials have previously said that the practices at Guantánamo did not violate ethics guidelines.
The Pentagon invited representatives of a number of health-related professional associations, including the American Medical Association, to pay a one-day visit to Guantanamo Bay. But they were not allowed to interview any detainees.
One of those attending, Prof. Nancy Sherman, who teaches philosophy at Georgetown University and has written extensively about ethics in the military, said that the DOD had worked hard to present a positive, upbeat image of what occurred at Guantánamo. "I think what was being sought was some sort of confirmation that their practices were ethically sound" and that some of the news accounts were wrong, she said.
Professor Sherman added that the distinction between using psychiatrists and psychologists as consultants rather than as providers of medical care was a tenuous one that invited ethical problems.
Winkenwerder said the new procedures separate individuals who are providing care from health professionals who work in other capacities in detention operations. Medical personnel who are in a provider-patient relationship with detainees -- those who actually provide treatment -- "shall not and will not undertake detainee-related activities for purposes other than to provide health care," he said.
"Such healthcare personnel shall not actively solicit information from detainees for purposes other than healthcare purposes," he explained.
But medical professionals in other roles in detention operations should not provide actual care for detainees, the new guidelines say. Such individuals might include behavioral-science specialists, such as FBI profilers; forensic psychiatrists, who are often appointed by a court to evaluate the mental competency or sanity of an individual; prison psychologists, who evaluate the potential danger of somebody to society; or public-health experts, who evaluate potential for disease outbreaks.
Which still leaves us with nagging questions: Aren't forensic psychiatrists physicians? Aren't they, as well as behavioral science specialists and prison psychologists, governed by the ethical rules of their professions?
Medical doctors take an oath to "do no harm". While psychologists and behavioral science specialists may not have to take such an oath, they are nonetheless committed to doing good, not harm.
And what part of "do no harm" don't they understand? It doesn't require an oath to act ethically. And there is nothing ethical about advising interrogators about how to "break" detainees.
.
"Press Office", chirped the Defense Department voice on the phone.
"Yes, good morning. My name is Bill Fisher. I write for Truthout. I have a couple of questions about the Biscuit program. Would you be able to help me?"
"What are Biscuits?" said a confused voice.
"They are military shorthand for Behavioral Science Consultation Teams", said I.
"Let me connect you with the person who knows about that program," said the helpful voice.
Pause.
Then came an answering machine. "This is Jane Doe (I am not using her real name because I might get her in trouble). Please leave your name and phone number and the nature of your question, and I'll call you back", said the disembodied voicemail message.
I did, adding that I wanted to file a story today. Then I waited. And waited. And waited some more.
Altogether I called three times, each time being referred either to a different person (who was away from his/her desk), or to another automated voice mailbox, where I left the same message.
The questions I never got to ask anyone at DOD were:
"I'd like to know whether BISCUIT units are working at Abu Ghraib and Bagram and other U.S.-controlled detention centers as well as at Guantanamo", and "Some folks who are in the medical and other health-provider fields have been critical of the BISCUITS at Guantanamo Bay, saying they have been using doctors and nurses and psychologists to help the interrogators get information out of the detainees, and advising about how best to keep people alive who are on hunger strike there."
Now, if my name happened to be Bob Woodward or Jane Mayer or Sy Hirsch or Walter Pincus or Jim Risen, I suppose I could have called a "high level official close to the Bush Administration", who might speak "on condition of anonymity".
But I wanted to discover whether a plain vanilla working stiff journalist - and taxpayer -- could actually get some information on a sensitive subject from a famously secretive government.
I guess I got my answer. The silence was deafening.
Now, just in case you've been living on Pluto for the past year or so, BISCUITS -- Behavioral Science Consultation Teams - consist of military psychiatrists, psychologists, behavioral scientists, and other healthcare professionals. Their role, it has been charged by former Guantanamo interrogators, is to advise them on ways of increasing psychological duress on detainees, sometimes using their medical records to find ways of exploiting their fears and phobias, to make them more cooperative and willing to provide information.
In one example, published in the New York Times, "interrogators were told that a detainee's medical files showed he had a severe phobia of the dark and suggested ways in which that could be manipulated to induce him to cooperate."
The DOD has said that there is very limited access to prisoners' medical records. But many members of the healthcare community remain skeptical.
An article in the New England Journal of Medicine said interviews with doctors who helped devise and supervise the interrogation regimen at Guantánamo showed that the BISCUIT program was explicitly designed to increase fear and distress among detainees as a means to obtaining intelligence.
And between July 2003 and March 2004, a doctor was allegedly "pressured by OGA personnel into filling out death certificates on Iraqi detainees" though the doctor was not given the opportunity to examine the bodies. The causes of death given for two detainees were later found to be inaccurate. The term "OGA" (Other Government Agencies) is generally used to refer to the CIA.
After April 2003, when Defense Secretary Donald H. Rumsfeld tightened
rules on detainee treatment, one interrogator said detainees' medical records had to be obtained through BISCUIT team doctors, but that the doctors always obliged. The former interrogator said the BISCUIT team doctors usually observed interrogations from behind a one-way mirror, but sometimes were also in the room with the detainee and interrogator.
The biscuit teams were also central, the former interrogators told the New York Times, in devising strategies like "Operation Sandman," in which a detainee's sleep patterns were systematically interrupted several times a night.
Then there is the issue of the "autonomy" of a doctor's patients. That refers to a patient's fundamental right to decide which medical interventions he will permit. That well-established canon of medical ethics requires that a detainee who is on a hunger strike has the "autonomy" to remain on a hunger strike if that's what he wants. If one is a healthcare provider, the patient is a patient whether or not he's a prisoner. Which means that medical personnel are barred from forcing a prisoner to stay alive, or advising others about how to reach that objective.
So, to return to my unanswered questions to the DOD: Have the BISCUITs changed at all as a result of criticism from civilian medical and other healthcare authorities? And are they being used elsewhere?
As to the "elsewhere" question, what we know is that Maj. Gen. Geoffrey Miller, the former commander at Guantanamo, recommended the use of BSCT teams at Abu Ghraib when he was sent there to "GITMO-ize" it in August and September of 2003. According to the testimony of those who were at Abu Ghraib, psychologists were indeed involved in the interrogations and abuses of detainees.
Gen. Miller recently invoked his right against self-incrimination in a case of two soldiers accused of using dogs to intimidate detainees at Abu Ghraib. This invocation was the first sign by Miller that he might have information that would implicate him in the abuses in Iraq. Numerous reports indicate that Miller instituted the use of dogs to intimidate prisoners at Abu Ghraib after first using the technique at Guantanamo Bay. A military investigation recommended that Gen. Miller, who is soon to retire, be reprimanded, but a higher-ranking officer denied the request.
And a senior human rights attorney told me on condition of anonymity, "I would suspect since the BSCTs continue to be used as part of the intelligence apparatus at Gitmo" and because have been judged favorably by the military establishment "they are likely in place at the very least at strategic interrogation facilities in Iraq and in Afghanistan."
As to changes in the way the BISCUITs operate, the DOD finally issued revised guidelines last June, after various healthcare professional organizations and prominent medical authorities ignited a firestorm of criticism. Both the American
Psychological Association and the American Psychiatric Association have
made clear that it is unethical for members of their profession -- whether in the military or not -- to participate interrogations or to provide information to interrogators about ways to "break" a detainee.
Dr. William Winkenwerder Jr., assistant secretary of defense for health affairs, acknowledged that the new guidelines came about as the result of a review of procedures begun after allegations of medical personnel assisting in abusing prisoners surfaced. "What got the ball rolling was an awareness from all the information coming out of Abu Ghraib and the various allegations," he said.
Some of the most passionate of these allegations have come from Brigadier General Stephen N. Xenakis, M.D., who retired from the U.S. Army in 1998, after serving in many high-level positions, including Commanding General of the Southeast Regional Army Medical Command. He has reportedly played a major role in driving the DOD to re-examine its medical practices.
Last month he said: "Medical officers enjoy special privileges and status and are expected to abide by and stand up for their professional principles at all times and in all situations. This operation - the War on Terror - is no different... It is important to remember that the burden of leadership is to ensure that high moral and ethical practices are maintained in even the most demanding situations."
But, speaking about prisoner deaths while in U.S. custody, Gen. Xenakis charged, "To date, we have no indication that either the Army Medical Department or the Office of the Assistant Secretary of Defense for Health Affairs has conducted a thorough investigation of the medical care provided to detainees and the circumstances surrounding the known deaths."
The new guidelines, said Dr. William Winkenwerder Jr., assistant secretary of defense for health affairs, consolidates "principles and procedures for U.S. military medical personnel when working with detainees under control of U.S. armed forces."
The guidelines specify that military medical personnel must observe medical ethics, make medically appropriate decisions, and report inhumane treatment. Military healthcare professionals must "be guided by professional judgment and standards similar to those that would be applied to members of the U.S. armed forces, including duty to protect the physical and mental health of the detainee" and "will not participate in any activity that is not consistent with applicable law."
But in a briefing for reporters, Winkenwerder declined to say whether the guidelines would prohibit some of the activities described by former interrogators and others. He said the medical personnel "were not driving the interrogations" but were there as "consultants".
Winkenwerder added that "only a very, very small number of reports of observation of possible abuse" have been recorded. Pentagon officials have previously said that the practices at Guantánamo did not violate ethics guidelines.
The Pentagon invited representatives of a number of health-related professional associations, including the American Medical Association, to pay a one-day visit to Guantanamo Bay. But they were not allowed to interview any detainees.
One of those attending, Prof. Nancy Sherman, who teaches philosophy at Georgetown University and has written extensively about ethics in the military, said that the DOD had worked hard to present a positive, upbeat image of what occurred at Guantánamo. "I think what was being sought was some sort of confirmation that their practices were ethically sound" and that some of the news accounts were wrong, she said.
Professor Sherman added that the distinction between using psychiatrists and psychologists as consultants rather than as providers of medical care was a tenuous one that invited ethical problems.
Winkenwerder said the new procedures separate individuals who are providing care from health professionals who work in other capacities in detention operations. Medical personnel who are in a provider-patient relationship with detainees -- those who actually provide treatment -- "shall not and will not undertake detainee-related activities for purposes other than to provide health care," he said.
"Such healthcare personnel shall not actively solicit information from detainees for purposes other than healthcare purposes," he explained.
But medical professionals in other roles in detention operations should not provide actual care for detainees, the new guidelines say. Such individuals might include behavioral-science specialists, such as FBI profilers; forensic psychiatrists, who are often appointed by a court to evaluate the mental competency or sanity of an individual; prison psychologists, who evaluate the potential danger of somebody to society; or public-health experts, who evaluate potential for disease outbreaks.
Which still leaves us with nagging questions: Aren't forensic psychiatrists physicians? Aren't they, as well as behavioral science specialists and prison psychologists, governed by the ethical rules of their professions?
Medical doctors take an oath to "do no harm". While psychologists and behavioral science specialists may not have to take such an oath, they are nonetheless committed to doing good, not harm.
And what part of "do no harm" don't they understand? It doesn't require an oath to act ethically. And there is nothing ethical about advising interrogators about how to "break" detainees.
.
BALL IN THE SUPREME'S COURT
By William Fisher
This week the U.S. Supreme Court will hear what will almost certainly be one of the landmark cases of the past fifty years.
Their decision will determine whether the Supreme Court will continue to assert its authority to review and check the executive’s power to detain and try individuals caught up in the “war on terror.”
The case is called Hamdan versus Rumsfeld. The Hamdan is Salim Ahmed Hamdan, who has been a prisoner at Guantanamo Bay, Cuba, since 2002. The Rumsfeld is Defense Secretary Donald Rumsfeld, whose department has jurisdiction over all detainees held at U.S.-controlled military prisons.
Since the Court agreed to hear Hamdan’s case, the administration of President George W. Bush filed an extraordinary motion to dismiss it. The government argues that a law passed by Congress late last year was intended to deny the right of habeas corpus to all prisoners in U.S. custody -- including not only new cases, but those that were pending at the time Congress acted. The Bush administration contends that Congress intended to strip the high court of its jurisdiction to hear any challenge arising out of the detentions at Guantanamo Bay.
But according to Deborah Perlstein, an attorney with legal advocacy group Human Rights First, “Apart from the weakness of the Administration’s case on the merits, the statute passed by Congress last year makes clear its intent to apply only to cases arising after Hamdan’s.”
Perlstein told us, “It’s hard to see even this new Court accepting that kind of frontal assault on its own power.”
Two new Justices have been appointed to sit on the Supreme Court in the past few months. John Roberts has become chief justice, replacing William Renquist, who died. And Samuel J. Alito Jr. has joined the court, replacing Sandra Day O’Connor, who resigned after 24 years as an associate justice.
Even if the justices resolve the court-stripping issue, it will be left to decide two other weighty questions: Does the President have the authority to convene military commissions to try alleged terrorists and ignore the procedural protections that Congress and the Constitution have long afforded those facing U.S. military trials? And are the Geneva Conventions – the laws of war that the United States long ago ratified and made part of U.S. law – enforceable by individuals in federal court?
According to Perlstein, “Either one of these questions is generational in nature. Taken together, they give Hamdan the potential to be one of the most important cases the Supreme Court has heard on the issue of presidential power in the past half-century.”
To complicate matters further, Chief Justice Roberts has recused himself from the Hamdan case because he participated in ruling on it in a lower court before his recent appointment. That means eight justices will hear the arguments, thus eliminating the possibility of the 5-4 decision often made by this court in contentious cases.
But, says Perlstein, “More significant than the absence of Chief Justice Roberts, is the absence of Justice Rehnquist and O’Connor in this kind of case. Those justices had for the past nearly 30 years been at the leading edge of the Court’s assertion of its own power, above Congress and the Executive, as a co-equal branch of government. Whether the absence of their voices will have left a court more reluctant to weigh in on matters of individual rights in the face of government power remains to be seen.”
The Hamdan case has been bouncing around the U.S. justice system for several years, beginning in 2004, when the DOD Formally referred charges against the 34-year-old Yemeni national, one of six Guantánamo detainees who were designated by President Bush in July 2003 as subject to trial by military commission under the President’s Order of November 13, 2001. Hamdan was captured by Afghan forces and handed over to the U.S. military in Afghanistan in late 2001.
The government accuses Hamdan of serving as Osama Bin Laden’s bodyguard and personal driver, delivering weapons to al Qaeda members and purchasing vehicles for Bin Laden’s security detail. He is formally charged with conspiracy to attack civilians, attack civilian objects, murder, destruction of property, and terrorism.
Held at the U.S. Naval Base at Guantánamo Bay, Cuba, since early 2002, Mr. Hamdan is currently represented by Navy Lt. Cmdr. Charles Swift, who brought suit in 2004 seeking Hamdan’s release from solitary confinement and declaring the commissions unconstitutional.
Documents unsealed in early August reveal allegations that Hamdan was beaten, threatened, and kept in isolation for upwards of eight months. A military commission preliminary hearing began the week of August 23, 2004.
In September 2004, the petition was re-filed in the federal district court for the District of Columbia, and, in November 2004, that court found the military commission unlawful because the process violated the laws of war and military law, and stayed the commission.
In July 2005 the Court of Appeals for the District of Columbia reversed the district court and upheld the commission as lawful. Hamdan’s lawyers appealed the ruling, and in November 2005 the Supreme Court agreed to hear the case.
In January 2006, the government filed a motion for the Supreme Court to dismiss the case on the ground that the Detainee Treatment Act of 2005 (the Graham/Levin amendment) divested Hamdan of the right to seek habeas corpus in a federal court.
That law entered congress as an amendment to a massive war-spending bill. It was introduced as a compromise by Sen. Lindsey Graham, a conservative Republican from South Carolina and a former military judge, and Sen. Carl Levin, a liberal Democrat from Michigan.
HRF’s Perlstein told IPS the Graham-Levin compromise was “a mistake”. She says that she understands Senator Graham’s motivation – “to try to address the uncertain legal status of those held in a U.S. detention system that includes thousands of people worldwide.”
However, she adds, “The great irony of Congress’ action here was to guarantee that the question of the legal status of those stuck in limbo already for years would remain unresolved, and would continue to be litigated for some time to come. Apart from the Amendment’s legal infirmities – trying to strip the federal courts of the power to enforce the Constitution against an executive branch strikingly uninterested in law – as a matter of security policy, it effectively made matters worse.”
Brian J. Foley, a professor at Florida Coastal School of Law, told us he was uncertain about whether the Graham-Levin measure “clearly supports an argument that it is prospective only. Legislative history may say otherwise, but courts might not consider legislative history if they think the text is clear. It will be up to the courts”
However, he adds, “Congress did make clear that it doesn't want to give these prisoners a way to 'complain' about conditions of confinement, including torture. Congress made clear that it doesn't want to give them a way to 'complain' that they are not being given a hearing, or that getting a decision in a hearing is taking too long. Congress was foolish to pass this law, because these enormous presidential powers can so easily be turned against US citizens. What if a US citizen is rounded up and never given a hearing to test whether he's an enemy combatant -- or even a US citizen? Well, he can't access the courts, thanks to this statute. The only hope is that the Constitution's right to habeas corpus transcends this statute. That will ultimately be a major issue in the Supreme Court, and we can only hope that the justices don't simply side with the Administration.”
The High Court’s decision will not be public until July. Meanwhile, American citizens ought to be pondering whether it wants to become a monarchy, ruled by a president. They also ought to give some serious thought to the kind of message indefinite detention of prisoners without a real trials sends to the rest of the world.
This week the U.S. Supreme Court will hear what will almost certainly be one of the landmark cases of the past fifty years.
Their decision will determine whether the Supreme Court will continue to assert its authority to review and check the executive’s power to detain and try individuals caught up in the “war on terror.”
The case is called Hamdan versus Rumsfeld. The Hamdan is Salim Ahmed Hamdan, who has been a prisoner at Guantanamo Bay, Cuba, since 2002. The Rumsfeld is Defense Secretary Donald Rumsfeld, whose department has jurisdiction over all detainees held at U.S.-controlled military prisons.
Since the Court agreed to hear Hamdan’s case, the administration of President George W. Bush filed an extraordinary motion to dismiss it. The government argues that a law passed by Congress late last year was intended to deny the right of habeas corpus to all prisoners in U.S. custody -- including not only new cases, but those that were pending at the time Congress acted. The Bush administration contends that Congress intended to strip the high court of its jurisdiction to hear any challenge arising out of the detentions at Guantanamo Bay.
But according to Deborah Perlstein, an attorney with legal advocacy group Human Rights First, “Apart from the weakness of the Administration’s case on the merits, the statute passed by Congress last year makes clear its intent to apply only to cases arising after Hamdan’s.”
Perlstein told us, “It’s hard to see even this new Court accepting that kind of frontal assault on its own power.”
Two new Justices have been appointed to sit on the Supreme Court in the past few months. John Roberts has become chief justice, replacing William Renquist, who died. And Samuel J. Alito Jr. has joined the court, replacing Sandra Day O’Connor, who resigned after 24 years as an associate justice.
Even if the justices resolve the court-stripping issue, it will be left to decide two other weighty questions: Does the President have the authority to convene military commissions to try alleged terrorists and ignore the procedural protections that Congress and the Constitution have long afforded those facing U.S. military trials? And are the Geneva Conventions – the laws of war that the United States long ago ratified and made part of U.S. law – enforceable by individuals in federal court?
According to Perlstein, “Either one of these questions is generational in nature. Taken together, they give Hamdan the potential to be one of the most important cases the Supreme Court has heard on the issue of presidential power in the past half-century.”
To complicate matters further, Chief Justice Roberts has recused himself from the Hamdan case because he participated in ruling on it in a lower court before his recent appointment. That means eight justices will hear the arguments, thus eliminating the possibility of the 5-4 decision often made by this court in contentious cases.
But, says Perlstein, “More significant than the absence of Chief Justice Roberts, is the absence of Justice Rehnquist and O’Connor in this kind of case. Those justices had for the past nearly 30 years been at the leading edge of the Court’s assertion of its own power, above Congress and the Executive, as a co-equal branch of government. Whether the absence of their voices will have left a court more reluctant to weigh in on matters of individual rights in the face of government power remains to be seen.”
The Hamdan case has been bouncing around the U.S. justice system for several years, beginning in 2004, when the DOD Formally referred charges against the 34-year-old Yemeni national, one of six Guantánamo detainees who were designated by President Bush in July 2003 as subject to trial by military commission under the President’s Order of November 13, 2001. Hamdan was captured by Afghan forces and handed over to the U.S. military in Afghanistan in late 2001.
The government accuses Hamdan of serving as Osama Bin Laden’s bodyguard and personal driver, delivering weapons to al Qaeda members and purchasing vehicles for Bin Laden’s security detail. He is formally charged with conspiracy to attack civilians, attack civilian objects, murder, destruction of property, and terrorism.
Held at the U.S. Naval Base at Guantánamo Bay, Cuba, since early 2002, Mr. Hamdan is currently represented by Navy Lt. Cmdr. Charles Swift, who brought suit in 2004 seeking Hamdan’s release from solitary confinement and declaring the commissions unconstitutional.
Documents unsealed in early August reveal allegations that Hamdan was beaten, threatened, and kept in isolation for upwards of eight months. A military commission preliminary hearing began the week of August 23, 2004.
In September 2004, the petition was re-filed in the federal district court for the District of Columbia, and, in November 2004, that court found the military commission unlawful because the process violated the laws of war and military law, and stayed the commission.
In July 2005 the Court of Appeals for the District of Columbia reversed the district court and upheld the commission as lawful. Hamdan’s lawyers appealed the ruling, and in November 2005 the Supreme Court agreed to hear the case.
In January 2006, the government filed a motion for the Supreme Court to dismiss the case on the ground that the Detainee Treatment Act of 2005 (the Graham/Levin amendment) divested Hamdan of the right to seek habeas corpus in a federal court.
That law entered congress as an amendment to a massive war-spending bill. It was introduced as a compromise by Sen. Lindsey Graham, a conservative Republican from South Carolina and a former military judge, and Sen. Carl Levin, a liberal Democrat from Michigan.
HRF’s Perlstein told IPS the Graham-Levin compromise was “a mistake”. She says that she understands Senator Graham’s motivation – “to try to address the uncertain legal status of those held in a U.S. detention system that includes thousands of people worldwide.”
However, she adds, “The great irony of Congress’ action here was to guarantee that the question of the legal status of those stuck in limbo already for years would remain unresolved, and would continue to be litigated for some time to come. Apart from the Amendment’s legal infirmities – trying to strip the federal courts of the power to enforce the Constitution against an executive branch strikingly uninterested in law – as a matter of security policy, it effectively made matters worse.”
Brian J. Foley, a professor at Florida Coastal School of Law, told us he was uncertain about whether the Graham-Levin measure “clearly supports an argument that it is prospective only. Legislative history may say otherwise, but courts might not consider legislative history if they think the text is clear. It will be up to the courts”
However, he adds, “Congress did make clear that it doesn't want to give these prisoners a way to 'complain' about conditions of confinement, including torture. Congress made clear that it doesn't want to give them a way to 'complain' that they are not being given a hearing, or that getting a decision in a hearing is taking too long. Congress was foolish to pass this law, because these enormous presidential powers can so easily be turned against US citizens. What if a US citizen is rounded up and never given a hearing to test whether he's an enemy combatant -- or even a US citizen? Well, he can't access the courts, thanks to this statute. The only hope is that the Constitution's right to habeas corpus transcends this statute. That will ultimately be a major issue in the Supreme Court, and we can only hope that the justices don't simply side with the Administration.”
The High Court’s decision will not be public until July. Meanwhile, American citizens ought to be pondering whether it wants to become a monarchy, ruled by a president. They also ought to give some serious thought to the kind of message indefinite detention of prisoners without a real trials sends to the rest of the world.
IRAQ TOLD TO REBUILD ITSELF
By William Fisher
Last week’s announcement that Iraq will now have to pay for its own reconstruction has left some observers wondering whether the yet-to-be-formed government there will be up to the task.
Iraq's deputy finance minister, Kamal Field al-Basri, said it was "reasonable" for the United States to sharply cut back its reconstruction efforts after spending about $21 billion. "We should be very much dependent on ourselves," al-Basri said in an interview the American newspaper, USA Today.
That will prove to be a very tall order. In 2003, the World Bank estimated the total rebuilding cost would be $60 billion. Current estimates put the bill at $70-100 billion.
The new estimate comes at a time when little progress has been made in increasing Iraq’s oil production – which represents more than 90 per cent of the country’s income. Slowed to a near halt by insurgent attacks, Iraq now spends about $6 billion annually to import oil.
Iraq must increase oil exports from their current level of about 1.6 million barrels a day to 2 million barrels a day, said Daniel Speckhard, director of the U.S. Iraq Reconstruction Management Office. The deputy finance minister said Iraq needs foreign investment to lift exports to three million barrels a day. That would equal the oil exports achieved by Iraq in the 1980s. Oil production today is far below prewar levels.
According to the Pentagon's prewar planning, oil production was supposed to provide the funds for Iraqi reconstruction. Vice President Richard Cheney and other senior Bush Administration officials emphasized this point repeatedly in their pre-war effort to justify the U.S. invasion.
Also facing the country is a massive rebuilding of infrastructure. Lack of security has also stymied efforts to rebuild electrical, sewer and water systems. A report last month by the special U.S. inspector general overseeing reconstruction said so much money was being spent on security that most sewer, irrigation, and drainage projects had been canceled.
Production by Iraq's national electrical grid remains at 4,000 megawatts, 400 megawatts below pre-war levels, with the average Iraqi receiving less than 12 hours of power a day. The shortfall has been attributed mainly to sabotage by insurgents.
Approximately 16%-22% of each reconstruction dollar spent by the U.S. has gone to protect projects and contractors.
Speaking on condition of anonymity because he is involved in the current Iraqi political process, a leading Middle East expert told us, “Because the U.S. did understand Iraqi culture, it did not anticipate the insurgency. Because it did not anticipate the insurgency, it could not have planned for the huge sums that would have to be spent on security.”
Critics of the Bush Administration see the end of American reconstruction funding as vindicating this position. Typical is Prof. Beau Grosscup, professor of international relations at California State University at Chico. He told us, “Having destroyed Iraq, the U.S. can't and now refuses to put it back together again. This decision reflects the disastrous reality of the U.S. occupation for the Iraqi people as it is obvious there won't be peace until the U.S. leaves. Meanwhile, the make-over of the Iraqi economy has been completed.”
But the Pentagon defends the reconstruction project as the best that could be achieved under very difficult and dangerous security conditions.
With the billions of dollars appropriated by the U.S. for Iraqi reconstruction almost all spent, other nations and multinational institutions will be asked to shoulder the burden for funding the large number of unfinished projects.
Speckhard said the U.S. aid program sought to "kick-start the economy" and "lay a foundation" that Iraq could build on. He added, "That kick-starting process has occurred.”
However, the extent of U.S. commitment to reconstruction has always been somewhat murky. "The U.S. never intended to completely rebuild Iraq," Brig. Gen. William McCoy, the Army Corps of Engineers commander overseeing the work, told reporters at a recent news conference. In an interview, McCoy reportedly told The Washington Post newspaper, "This was just supposed to be a jump-start."
But McCoy’s assertion seems to be at odds with previous administration statements. For example, in a speech on Aug. 8, 2003, President George W. Bush said, "In a lot of places, the infrastructure is as good as it was at prewar levels, which is satisfactory, but it's not the ultimate aim. The ultimate aim is for the infrastructure to be the best in the region."
While President Bush gave the impression that Iraq was slated for a complete makeover, Defense Secretary Donald Rumsfeld appeared less certain. He told the Senate Appropriations Committee in March 2003, “I don't believe that the United States has the responsibility for reconstruction…(reconstruction) funds can come from…frozen assets, oil revenues and a variety of other things, including the Oil for Food, which has a very substantial number of billions of dollars in it.”
On the other hand, that view seems to contradict a report submitted the same year by the prime consulting contractor hired by the Pentagon to lay out the future of Iraq’s economy. The company, BearingPoint Inc. of McLean, Virginia, said, “The reconstruction of Iraq has begun. Not the reconstruction of vital public services such as water, electricity or public security, but rather the radical reconstruction of its entire economy.”
Clearly, this has not happened. And the Administration’s recent decision not to ask Congress for additional funding for reconstruction suggests it is not likely to happen any time soon.
With many of Iraq’s key ministries in disarray and some dogged by persistent corruption, and with no permanent government in place, observers say it is doubtful that the country’s government will have either the resources or the expertise to manage the large-scale reconstruction projects that remain unfinished
Relatively little of the $30 billion allocated for reconstruction since the invasion
remains to be spent, and spending authority is scheduled to run out in June 2007.
According to a recent report by the U.S. special inspector general for Iraq (IG), reconstruction officials cannot say how many planned projects they will complete, and there is no clear source for hundreds of millions of dollars a year needed to operate the projects that have been finished.
The IG’s report described some progress but also cited a number of projects that have failed. For example, expensive electrical substations were built but not connected to the country's electrical grid.
Much of the reconstruction funding has been diverted to other projects. At least $2.5 billion earmarked for infrastructure and schools was diverted to building up a security force. Funds originally intended to repair the electricity grid and sewage and sanitation system were used to train special bomb squad units and a hostage rescue force. The U.S. has also shifted funds to build 10 new prisons to keep pace with the insurgency, and safe houses and armored cars for Iraqi judges.
Hundreds of millions of dollars from the reconstruction fund was also used to hold elections and for four changes of government, and to establish a criminal justice system, including $128 million to examine several mass graves of Saddam Hussein’s alleged victims.
In addition to the diversion of funds to other types of projects, the reconstruction efforts have been plagued by substantial corruption and overcharging by contractors.
The cost of security has eaten up as much as 25% of each project, according to the IG. A U.S. congressional report last October forecast that many reconstruction projects were unlikely to get off the ground because of security costs. Iraqi authorities estimate that 10 billion dollars are needed for the health sector alone, to build or rehabilitate and provide equipment for hospitals and clinics.
The bottom line here is that while Iraqi politicians squabble over the composition of their future government, Iraq’s infrastructure remains in shambles. If these leaders – and wannabe leaders – really care about their country more than they do about their party or their egos, real reconstruction provides a huge incentive for them to get on with the job.
Last week’s announcement that Iraq will now have to pay for its own reconstruction has left some observers wondering whether the yet-to-be-formed government there will be up to the task.
Iraq's deputy finance minister, Kamal Field al-Basri, said it was "reasonable" for the United States to sharply cut back its reconstruction efforts after spending about $21 billion. "We should be very much dependent on ourselves," al-Basri said in an interview the American newspaper, USA Today.
That will prove to be a very tall order. In 2003, the World Bank estimated the total rebuilding cost would be $60 billion. Current estimates put the bill at $70-100 billion.
The new estimate comes at a time when little progress has been made in increasing Iraq’s oil production – which represents more than 90 per cent of the country’s income. Slowed to a near halt by insurgent attacks, Iraq now spends about $6 billion annually to import oil.
Iraq must increase oil exports from their current level of about 1.6 million barrels a day to 2 million barrels a day, said Daniel Speckhard, director of the U.S. Iraq Reconstruction Management Office. The deputy finance minister said Iraq needs foreign investment to lift exports to three million barrels a day. That would equal the oil exports achieved by Iraq in the 1980s. Oil production today is far below prewar levels.
According to the Pentagon's prewar planning, oil production was supposed to provide the funds for Iraqi reconstruction. Vice President Richard Cheney and other senior Bush Administration officials emphasized this point repeatedly in their pre-war effort to justify the U.S. invasion.
Also facing the country is a massive rebuilding of infrastructure. Lack of security has also stymied efforts to rebuild electrical, sewer and water systems. A report last month by the special U.S. inspector general overseeing reconstruction said so much money was being spent on security that most sewer, irrigation, and drainage projects had been canceled.
Production by Iraq's national electrical grid remains at 4,000 megawatts, 400 megawatts below pre-war levels, with the average Iraqi receiving less than 12 hours of power a day. The shortfall has been attributed mainly to sabotage by insurgents.
Approximately 16%-22% of each reconstruction dollar spent by the U.S. has gone to protect projects and contractors.
Speaking on condition of anonymity because he is involved in the current Iraqi political process, a leading Middle East expert told us, “Because the U.S. did understand Iraqi culture, it did not anticipate the insurgency. Because it did not anticipate the insurgency, it could not have planned for the huge sums that would have to be spent on security.”
Critics of the Bush Administration see the end of American reconstruction funding as vindicating this position. Typical is Prof. Beau Grosscup, professor of international relations at California State University at Chico. He told us, “Having destroyed Iraq, the U.S. can't and now refuses to put it back together again. This decision reflects the disastrous reality of the U.S. occupation for the Iraqi people as it is obvious there won't be peace until the U.S. leaves. Meanwhile, the make-over of the Iraqi economy has been completed.”
But the Pentagon defends the reconstruction project as the best that could be achieved under very difficult and dangerous security conditions.
With the billions of dollars appropriated by the U.S. for Iraqi reconstruction almost all spent, other nations and multinational institutions will be asked to shoulder the burden for funding the large number of unfinished projects.
Speckhard said the U.S. aid program sought to "kick-start the economy" and "lay a foundation" that Iraq could build on. He added, "That kick-starting process has occurred.”
However, the extent of U.S. commitment to reconstruction has always been somewhat murky. "The U.S. never intended to completely rebuild Iraq," Brig. Gen. William McCoy, the Army Corps of Engineers commander overseeing the work, told reporters at a recent news conference. In an interview, McCoy reportedly told The Washington Post newspaper, "This was just supposed to be a jump-start."
But McCoy’s assertion seems to be at odds with previous administration statements. For example, in a speech on Aug. 8, 2003, President George W. Bush said, "In a lot of places, the infrastructure is as good as it was at prewar levels, which is satisfactory, but it's not the ultimate aim. The ultimate aim is for the infrastructure to be the best in the region."
While President Bush gave the impression that Iraq was slated for a complete makeover, Defense Secretary Donald Rumsfeld appeared less certain. He told the Senate Appropriations Committee in March 2003, “I don't believe that the United States has the responsibility for reconstruction…(reconstruction) funds can come from…frozen assets, oil revenues and a variety of other things, including the Oil for Food, which has a very substantial number of billions of dollars in it.”
On the other hand, that view seems to contradict a report submitted the same year by the prime consulting contractor hired by the Pentagon to lay out the future of Iraq’s economy. The company, BearingPoint Inc. of McLean, Virginia, said, “The reconstruction of Iraq has begun. Not the reconstruction of vital public services such as water, electricity or public security, but rather the radical reconstruction of its entire economy.”
Clearly, this has not happened. And the Administration’s recent decision not to ask Congress for additional funding for reconstruction suggests it is not likely to happen any time soon.
With many of Iraq’s key ministries in disarray and some dogged by persistent corruption, and with no permanent government in place, observers say it is doubtful that the country’s government will have either the resources or the expertise to manage the large-scale reconstruction projects that remain unfinished
Relatively little of the $30 billion allocated for reconstruction since the invasion
remains to be spent, and spending authority is scheduled to run out in June 2007.
According to a recent report by the U.S. special inspector general for Iraq (IG), reconstruction officials cannot say how many planned projects they will complete, and there is no clear source for hundreds of millions of dollars a year needed to operate the projects that have been finished.
The IG’s report described some progress but also cited a number of projects that have failed. For example, expensive electrical substations were built but not connected to the country's electrical grid.
Much of the reconstruction funding has been diverted to other projects. At least $2.5 billion earmarked for infrastructure and schools was diverted to building up a security force. Funds originally intended to repair the electricity grid and sewage and sanitation system were used to train special bomb squad units and a hostage rescue force. The U.S. has also shifted funds to build 10 new prisons to keep pace with the insurgency, and safe houses and armored cars for Iraqi judges.
Hundreds of millions of dollars from the reconstruction fund was also used to hold elections and for four changes of government, and to establish a criminal justice system, including $128 million to examine several mass graves of Saddam Hussein’s alleged victims.
In addition to the diversion of funds to other types of projects, the reconstruction efforts have been plagued by substantial corruption and overcharging by contractors.
The cost of security has eaten up as much as 25% of each project, according to the IG. A U.S. congressional report last October forecast that many reconstruction projects were unlikely to get off the ground because of security costs. Iraqi authorities estimate that 10 billion dollars are needed for the health sector alone, to build or rehabilitate and provide equipment for hospitals and clinics.
The bottom line here is that while Iraqi politicians squabble over the composition of their future government, Iraq’s infrastructure remains in shambles. If these leaders – and wannabe leaders – really care about their country more than they do about their party or their egos, real reconstruction provides a huge incentive for them to get on with the job.
Wednesday, March 22, 2006
THE OXYCOPS
By William Fisher
Wheelchairbound multiple sclerosis patient Richard Paey is serving 25 years in a Florida prison for “trafficking” 1/2 gram of OxyContin, even though the prosecutor concedes that Paey never sold any of his medications. In prison, he now receives more pain-killing drugs than he was convicted of having.
Dr. William Hurwitz, a pioneering pain physician, was tried and convicted of violating the Controlled Substances Act -- which is intended to curb the illicit use of drugs -- and is serving a 25-year term in federal prison. He was also fined $2 million.
These are but two of hundreds of cases in which, in its zeal to stamp out the illegal drug use, the U.S. Drug Enforcement Administration (DEA) is cracking down on doctors who prescribe medications to relieve chronic pain, and the patients who depend on these drugs to live normal lives.
Hundreds of physicians have been put on trial for charges ranging from health insurance fraud to drug distribution, even to manslaughter and murder for over-prescribing prescription narcotics. Investigators have also seized doctors’ homes, offices, and bank accounts, leaving them with no resources for their defense.
In March 2004, DEA administrator Karen Tandy told Congress her drug warriors have "been successful in addressing OxyContin diversion as evidenced by a reduction in the rate of increase of OxyContin prescriptions being written and a leveling-off of OxyContin sales." But Ronald Libby, a professor of political science at the University of North Florida, told us he doubts that sales of opioids like Oxycodone have declined since 2004.
Drug diversion means the diversion of legal drugs for illicit purposes. Prescription drug abuse accounts for almost 30% of the overall drug problem in the United States, representing a close challenge to cocaine addiction. Sometimes these diverted prescription drugs end up for sale on the street, where they reap large profits for traffickers.
Starting in the mid-1990s, and ratcheting up in 2001, the DEA -- part of the U.S. Department of Justice (DOJ) -- has been leading an aggressive effort to eradicate the illegal "diversion" of certain prescription painkillers. A particular target has been OxyContin, one of a class of drugs known as opioids, which was aggressively marketed by its manufacturer, Purdue Pharma.
In 2001, the DEA launched a campaign called the "OxyContin Action Plan”. The DEA says the plan is necessary due to increasing abuse of prescription drugs, particularly by youth. The agency, which has teamed up with state and local authorities, typically employs law enforcement methods developed in the government’s “War on Drugs”, including aggressive undercover investigation, asset forfeiture, and informers. It says its goal is to stop violations of the Controlled Substances Law.
But critics charge that the DEA has focused too narrowly on doctors, exacerbating the already widespread problem of untreated or under-treated pain. As a result, well-meaning doctors are finding themselves subject to costly, potentially career-ending investigations. Several doctors and many of their patients have already been sent to prison.
The DEA maintains that only “criminal doctors” are being targeted, and that its efforts to prevent the sale of prescribed medications have no effect on the legitimate treatment of pain.
The pain-management community disagrees. Authorities say the DEA program reportedly is having a chilling effect on physicians, who are leaving their pain management specialties for safer practices, and on their patients, many of who literally cannot function without medication. The Village Voice newspaper reports that medical schools are now advising students to avoid pain management practice altogether.
Ironically, the DEA crackdown comes at a time when the medical profession knows more than ever about how to treat the chronic pain that makes life intolerable – sometimes impossible – for the estimated 50 to 70 million Americans who live in chronic disabling pain.
Until about 20 years ago, the medical profession knew little about pain management. Today, pain management has become a recognized medical specialty, and it is estimated that there are some 5,000 pain management doctors practicing in the U.S.
The DEA’s programs also come at a time when there are more effective pain-killing drugs on the market and when the Internet makes it easier than ever to obtain them.
The DEA’s dilemma is separating legitimate prescribers and users from drug dealers. And the DEA’s task is made more difficult, not only by its zeal, but by the fact that those investigating and prosecuting are not doctors but lawyers and law enforcement agents.
Before he was ever charged with a crime, Dr. Hurwitz recommended that the DEA “suspend current prosecutions against physicians who treat pain unless and until a review by a panel of nationally recognized experts in medical pain management has found that there is an absence of good faith by the physician. If only the physician's adherence to standards of care can be questioned, then the case is not an appropriate one for the criminal process, and should be referred to the professional regulatory authorities,” he said.
The Association of American Physicians and Surgeons, in a letter to the judge in the Hurwitz case, charged he was convicted on the basis of “false expert testimony”, which it described as “egregious.”
Their letter said, “That a tiny percentage of his patients then broke the law with their prescriptions does not justify imprisoning Dr. Hurwitz for the rest of his life. A conviction based on this false medical testimony should not stand….”
The Hurwitz situation is not isolated. Throughout the U.S., physicians have been prosecuted, jailed, or have lost their licenses to practice medicine. In addition to Hurwitz, Dr. Ronald McIver is serving 30 years, Dr. Freddie Williams is serving life, and Dr. James Graves received a 62-plus-year sentence for diversion in 2002.
According to Prof. Libby, who has become an authority on the subject, “Many doctors have been convicted and almost no one has been acquitted.” He told us, “Most attorneys tell their clients to cop a plea and not fight it in court.”
Richard Paey was convicted of fraudulently submitting multiple copies of opioid prescriptions to treat chronic pain. He was in New Jersey where his doctor treated him, but then moved to Florida where he was unable to find a physician to write prescriptions to treat his pain.
Frightened by what they term a “brutal display of executive power”, most doctors, including those in the field of pain management, have simply abandoned this sickest and most vulnerable segment of our population. Patients suffering from mild to moderate pain, and requiring low dosages of opioids may still find care, but those patients with high dosage requirements are increasingly shut out of care altogether.
In 2004 it was estimated that many of the 5,000 pain specialists in the United States, would not prescribe opioids. Those few medical practices that do treat chronic pain with opioids impose severe restrictions on patients’ freedoms. Prof. Libby told us that many doctors are now prescribing over-the-counter medications such as aspirin and Tylenol, “which are far more dangerous than opioids if taken in large quantities.”
The DEA claims it investigates less than one per cent of physicians who prescribe OxyContin or other drugs covered by the Controlled Substances Act. The agency reported arresting 34 doctors out of 963,385 registered doctors in 2003, for selling opioids to addicts or drug dealers for money, sex, or favors. That is less than 0.001% of the total number of licensed doctors, the DEA said.
But critics dispute that figure. Prof. Libby told us, “In 2001, the DEA carried 861 investigations of doctors. If we use this figure instead of 34 arrests it means that more than 17 percent of the roughly 5,000 doctors who treat pain patients were investigated. That means that than one out of every six doctors who treat chronic pain patients were under criminal investigation.”
A not-for-profit advocacy group, the Pain Relief Network, is suing to have the Controlled Substances Act declared unconstitutional, and is seeking to enjoin the DEA from enforcing the law against physicians.
To calm its critics, the DEA commissioned several pain specialists to work with
Federal officials to create guidelines for physicians who treat pain with opioids. These guidelines were posted on the agency's website, and most doctors were led to believe that following the recommendations would keep them safe from prosecution.
But that understanding didn't last long. Late last year the guidelines were taken off the DEA's website. The agency claimed it wasn't bound by any standards or practices when it came to determining what physicians it would investigate.
Removal of the guidelines coincided with Dr. Hurwitz’s trial. The doctor’s attorneys attempted to have the guidelines admitted as evidence on the belief that Hurwitz's practice conformed to their parameters. They failed. A few weeks after Hurwitz's judge refused to admit the guidelines as evidence, the DEA renounced them, and essentially declared it had carte blanche to launch an inquiry.
David Jorenson, the academic pain specialist who headed the committee that
authored the original guidelines, sent the agency a sharply-worded rebuke. Three other professional associations representing pain specialists followed with a second letter. And the National Association of state Attorneys General wrote to the DEA, expressing concern that the agency was overstepping its bounds and interfering with the legitimate treatment of pain. The letter was signed by 30 AGs from both parties.
However, the DEA remains unmoved, insisting its revocation of the guidelines did not represent a shift in policy and that its pursuit of doctors should have no
effect on legitimate pain treatment.
Dr. Alexander DeLuca, MPH, a member of the American Academy of Preventive Health and a Policy Analyst and Board Member of the Pain Relief Network, told us, ”Relations between physicians and the DEA have probably never been worse in modern times.”
He added, “Law enforcement does not deserve a place at the table where physicians, social workers, and politicians of good will need to meet to deal with drug use and pain problems as public health, not criminal, matters.”
Wheelchairbound multiple sclerosis patient Richard Paey is serving 25 years in a Florida prison for “trafficking” 1/2 gram of OxyContin, even though the prosecutor concedes that Paey never sold any of his medications. In prison, he now receives more pain-killing drugs than he was convicted of having.
Dr. William Hurwitz, a pioneering pain physician, was tried and convicted of violating the Controlled Substances Act -- which is intended to curb the illicit use of drugs -- and is serving a 25-year term in federal prison. He was also fined $2 million.
These are but two of hundreds of cases in which, in its zeal to stamp out the illegal drug use, the U.S. Drug Enforcement Administration (DEA) is cracking down on doctors who prescribe medications to relieve chronic pain, and the patients who depend on these drugs to live normal lives.
Hundreds of physicians have been put on trial for charges ranging from health insurance fraud to drug distribution, even to manslaughter and murder for over-prescribing prescription narcotics. Investigators have also seized doctors’ homes, offices, and bank accounts, leaving them with no resources for their defense.
In March 2004, DEA administrator Karen Tandy told Congress her drug warriors have "been successful in addressing OxyContin diversion as evidenced by a reduction in the rate of increase of OxyContin prescriptions being written and a leveling-off of OxyContin sales." But Ronald Libby, a professor of political science at the University of North Florida, told us he doubts that sales of opioids like Oxycodone have declined since 2004.
Drug diversion means the diversion of legal drugs for illicit purposes. Prescription drug abuse accounts for almost 30% of the overall drug problem in the United States, representing a close challenge to cocaine addiction. Sometimes these diverted prescription drugs end up for sale on the street, where they reap large profits for traffickers.
Starting in the mid-1990s, and ratcheting up in 2001, the DEA -- part of the U.S. Department of Justice (DOJ) -- has been leading an aggressive effort to eradicate the illegal "diversion" of certain prescription painkillers. A particular target has been OxyContin, one of a class of drugs known as opioids, which was aggressively marketed by its manufacturer, Purdue Pharma.
In 2001, the DEA launched a campaign called the "OxyContin Action Plan”. The DEA says the plan is necessary due to increasing abuse of prescription drugs, particularly by youth. The agency, which has teamed up with state and local authorities, typically employs law enforcement methods developed in the government’s “War on Drugs”, including aggressive undercover investigation, asset forfeiture, and informers. It says its goal is to stop violations of the Controlled Substances Law.
But critics charge that the DEA has focused too narrowly on doctors, exacerbating the already widespread problem of untreated or under-treated pain. As a result, well-meaning doctors are finding themselves subject to costly, potentially career-ending investigations. Several doctors and many of their patients have already been sent to prison.
The DEA maintains that only “criminal doctors” are being targeted, and that its efforts to prevent the sale of prescribed medications have no effect on the legitimate treatment of pain.
The pain-management community disagrees. Authorities say the DEA program reportedly is having a chilling effect on physicians, who are leaving their pain management specialties for safer practices, and on their patients, many of who literally cannot function without medication. The Village Voice newspaper reports that medical schools are now advising students to avoid pain management practice altogether.
Ironically, the DEA crackdown comes at a time when the medical profession knows more than ever about how to treat the chronic pain that makes life intolerable – sometimes impossible – for the estimated 50 to 70 million Americans who live in chronic disabling pain.
Until about 20 years ago, the medical profession knew little about pain management. Today, pain management has become a recognized medical specialty, and it is estimated that there are some 5,000 pain management doctors practicing in the U.S.
The DEA’s programs also come at a time when there are more effective pain-killing drugs on the market and when the Internet makes it easier than ever to obtain them.
The DEA’s dilemma is separating legitimate prescribers and users from drug dealers. And the DEA’s task is made more difficult, not only by its zeal, but by the fact that those investigating and prosecuting are not doctors but lawyers and law enforcement agents.
Before he was ever charged with a crime, Dr. Hurwitz recommended that the DEA “suspend current prosecutions against physicians who treat pain unless and until a review by a panel of nationally recognized experts in medical pain management has found that there is an absence of good faith by the physician. If only the physician's adherence to standards of care can be questioned, then the case is not an appropriate one for the criminal process, and should be referred to the professional regulatory authorities,” he said.
The Association of American Physicians and Surgeons, in a letter to the judge in the Hurwitz case, charged he was convicted on the basis of “false expert testimony”, which it described as “egregious.”
Their letter said, “That a tiny percentage of his patients then broke the law with their prescriptions does not justify imprisoning Dr. Hurwitz for the rest of his life. A conviction based on this false medical testimony should not stand….”
The Hurwitz situation is not isolated. Throughout the U.S., physicians have been prosecuted, jailed, or have lost their licenses to practice medicine. In addition to Hurwitz, Dr. Ronald McIver is serving 30 years, Dr. Freddie Williams is serving life, and Dr. James Graves received a 62-plus-year sentence for diversion in 2002.
According to Prof. Libby, who has become an authority on the subject, “Many doctors have been convicted and almost no one has been acquitted.” He told us, “Most attorneys tell their clients to cop a plea and not fight it in court.”
Richard Paey was convicted of fraudulently submitting multiple copies of opioid prescriptions to treat chronic pain. He was in New Jersey where his doctor treated him, but then moved to Florida where he was unable to find a physician to write prescriptions to treat his pain.
Frightened by what they term a “brutal display of executive power”, most doctors, including those in the field of pain management, have simply abandoned this sickest and most vulnerable segment of our population. Patients suffering from mild to moderate pain, and requiring low dosages of opioids may still find care, but those patients with high dosage requirements are increasingly shut out of care altogether.
In 2004 it was estimated that many of the 5,000 pain specialists in the United States, would not prescribe opioids. Those few medical practices that do treat chronic pain with opioids impose severe restrictions on patients’ freedoms. Prof. Libby told us that many doctors are now prescribing over-the-counter medications such as aspirin and Tylenol, “which are far more dangerous than opioids if taken in large quantities.”
The DEA claims it investigates less than one per cent of physicians who prescribe OxyContin or other drugs covered by the Controlled Substances Act. The agency reported arresting 34 doctors out of 963,385 registered doctors in 2003, for selling opioids to addicts or drug dealers for money, sex, or favors. That is less than 0.001% of the total number of licensed doctors, the DEA said.
But critics dispute that figure. Prof. Libby told us, “In 2001, the DEA carried 861 investigations of doctors. If we use this figure instead of 34 arrests it means that more than 17 percent of the roughly 5,000 doctors who treat pain patients were investigated. That means that than one out of every six doctors who treat chronic pain patients were under criminal investigation.”
A not-for-profit advocacy group, the Pain Relief Network, is suing to have the Controlled Substances Act declared unconstitutional, and is seeking to enjoin the DEA from enforcing the law against physicians.
To calm its critics, the DEA commissioned several pain specialists to work with
Federal officials to create guidelines for physicians who treat pain with opioids. These guidelines were posted on the agency's website, and most doctors were led to believe that following the recommendations would keep them safe from prosecution.
But that understanding didn't last long. Late last year the guidelines were taken off the DEA's website. The agency claimed it wasn't bound by any standards or practices when it came to determining what physicians it would investigate.
Removal of the guidelines coincided with Dr. Hurwitz’s trial. The doctor’s attorneys attempted to have the guidelines admitted as evidence on the belief that Hurwitz's practice conformed to their parameters. They failed. A few weeks after Hurwitz's judge refused to admit the guidelines as evidence, the DEA renounced them, and essentially declared it had carte blanche to launch an inquiry.
David Jorenson, the academic pain specialist who headed the committee that
authored the original guidelines, sent the agency a sharply-worded rebuke. Three other professional associations representing pain specialists followed with a second letter. And the National Association of state Attorneys General wrote to the DEA, expressing concern that the agency was overstepping its bounds and interfering with the legitimate treatment of pain. The letter was signed by 30 AGs from both parties.
However, the DEA remains unmoved, insisting its revocation of the guidelines did not represent a shift in policy and that its pursuit of doctors should have no
effect on legitimate pain treatment.
Dr. Alexander DeLuca, MPH, a member of the American Academy of Preventive Health and a Policy Analyst and Board Member of the Pain Relief Network, told us, ”Relations between physicians and the DEA have probably never been worse in modern times.”
He added, “Law enforcement does not deserve a place at the table where physicians, social workers, and politicians of good will need to meet to deal with drug use and pain problems as public health, not criminal, matters.”
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