With today’s release of the Senate Report on the CIA’s interrogation practices for a small number of high value detainees (about 100) held by the CIA a decade ago, the false claims of American “torture” are once again being paraded across the media. Not only is the timing of the release bad for our national security – we are still at war with al-Qa’eda and “associated forces” of radical Islam – it is simply false that the techniques approved by the Department of Justice for use by the CIA constituted “torture.” This is not to say that individuals in their individual capacity did not violate directives and even the law on “torture.”
And of course, there is that magical word – “torture.” Allegations of torture roll off the tongue with great ease. In fact in May 2009, I testified in Washington DC before the United States Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts. The Senate hearing headed by the political party that then controlled the Senate majority was entitled: “What Went Wrong: Torture and the Office of the Legal Counsel in the Bush Administration.” In short, their minds were already made up!
Indeed, in the context of American interrogation practices and treatment of detainees, charges of torture are regularly raised by a variety of individuals and interest groups often associated with fixed political agendas. Recognizing that not every alleged incident of mistreatment necessarily satisfies the legal definition of torture, it is imperative that one views such allegations with a clear understanding of the applicable legal standards set out in law and judicial precedent. In this manner, claims of illegal interrogation practices can be properly measured as falling above or below a particular legal threshold. Only then can one hope to set aside the shrill rhetoric by such groups as the American Civil Liberties Union (ACLU) or Amnesty International, who once called the Guantanamo detention facility the “gulag of our time,” and objectively establish whether or not the United States stands in violation of the rule of law.
Starting in 2005 three important developments has shaped U.S. policy and law in terms of interrogation techniques. In the context of enemy combatants under the control of the U.S. government, the Detainee Treatment Act of 2005 adopted international human rights terminology in setting out interrogation limits. In short, American interrogators could not engage in “cruel, inhuman and degrading treatment or punishment of persons under detention, custody, or control of the United States Government.” Pursuant to the so-called McCain Amendment, “cruel, unusual, and inhuman treatment or punishment” covers all those acts prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution, as previously stated in the U.S. reservations to the Torture Convention. The second development was the Hamdan case and the resulting 2006 Military Commissions Act which applied the provisions of Common Article 3 of the Geneva Conventions to all detainees. Finally, Executive Order 13441 issued by President Obama in January 2009, now requires all U.S. agencies (to include the CIA) to comply with the new Bush-era Army Field Manual on interrogations (FM 2-22.3) which specifically outlaws: (1) forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner; (2) placing hoods or sacks over the head of the detainee, or using duct tape over the eyes; (3) applying beatings, electric shock, burns, or other forms of physical pain; (4) water boarding; (5) using military working dogs; (6) inducing hypothermia or heat injury; (7) conducting mock executions; and (8) depriving the detainee of necessary food, water, or medical care. Still, President Obama’s order does allow federal agencies to employ non-coercive techniques and established a High-Value Detainee Interrogation Group (HIG), composed of experienced interrogators and support personnel from law enforcement, the DOD, and the intelligence community.
Bluntly put, did the United States employ illegal interrogation methods in the War on Terror, particularly between the years 2002-2005, as some have charged? The answer is no.
(Tomorrow, I’ll continue this article with specific interrogation techniques the CIA was approved to use in gathering information from senior al-Qa’eda leaders, along with additional details pertinent to this ongoing discussion.)