Why I Disagree with the Senate Report on Torture (Part Two)

(Note: This is a continuation of a two-part post; the first past posted yesterday, and you can link to it here.)

The American position on the question of illegal interrogation practices is that the United States does not engage in torture or other ill-treatment, either in questioning or housing detainees. During the Bush Administration, U.S. National Security Council spokesman, Sean McCormack, exemplified the official stand: “The United States is treating enemy combatants in U.S. government control, wherever held, humanely and in a manner consistent with the principles of the Third Geneva Convention of 1949.” Of course, this is not to say that the United States did not then and does not now fully question detainees at a variety of levels. Government officials responsible for gathering information from detainees certainly employ the full range of permissible interrogation tactics measured against the existing law at the time. In other words, some “legal” interrogation practices from 2002-2005 would clearly be “illegal” today. The water boarding interrogation technique (called the most severe) used on a handful of detainees in the CIA program was viewed as constituting a level of force that did not rise to the level of torture under the Torture Convention.

In turn, the clandestine “black-site” detention facilities were established by the CIA in order to interrogate suspected high value al-Qa’eda personnel. The interrogations were initially conducted jointly by the CIA and FBI. With the capture of senior al-Qa’eda leader Abu Zubaydah during a raid in Pakistan in late March 2002, the CIA determined that it needed permission to use more aggressive interrogation techniques. The CIA psychologists proposed 12 so-called “enhanced interrogation techniques” (EITs) which they modeled entirely from practices used in the U.S. military’s Survival, Evasion, Resistance, and Escape (SERE) training program (except for the use of non-poisonous insects).

The SERE program is used to train pilots and special operations forces to withstand harsh and abusive treatment by the enemy should they be captured. Begun after the Korean War, tens of thousands of military personnel have gone through the program which subjects the participants to such things as stress positions, sleep deprivation, exposure to extreme cold or heat, and water boarding.

Understanding that the CIA would use the EITs on only senior members of al-Qa’eda who had knowledge of imminent terrorist threats against the United States, on August 1, 2002, the Office of the Legal Counsel (OLC), Department of Justice, issued two legal memorandums under the signature Jay S. Bybee, Assistant Attorney General, OLC. The classified version issued to the CIA, was entitled: Memorandum for John Rizzo, Acting General Council of the Central Intelligence Agency, Interrogation of al-Qa’eda Operative (classified Bybee memo). After reviewing the applicable international and domestic law to include statutes and case law, the classified Bybee memo concluded that “because the acts inflicting torture are extreme, there is sufficient range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment [ill-treatment] fail to rise to the level of torture.” In addition, the classified Bybee memo concluded that the infliction of severe physical or mental pain or suffering must be the “defendant’s precise objective.” Thus, noting that the SERE techniques produced no prolonged mental harm that would violate the Torture Convention, the classified Bybee memo authorized the CIA to use 10 of the 12 proposed EITs. Each technique was carefully described in the legal memorandum, along with restrictions and safeguards which required, for instance, the presence of psychologists and medical personnel along with the interrogator. The approved techniques were:

(1) Attention grasp: The interrogator grasps the subject with both hands, with one hand on each side of the collar opening, in a controlled and quick motion, and draws the subject toward the interrogator.
(2) Walling: The subject is pulled forward and then quickly and firmly pushed into a flexible wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.
(3) Facial hold: The Interrogator holds the subject’s head immobile by placing an open palm on either side of the subject’s face, keeping fingertips well away from the eyes.
(4) Facial or insult slap: With fingers slightly spread apart, the interrogator’s hand makes contact with the area between the tip of the subject’s chin and the bottom of the corresponding earlobe.
(5) Cramped confinement: The subject is placed in a confined space, typically a small or large box, which is usually dark. Confinement In the smaller space lasts no more than two hours and in the larger space, up to 18 hours.
(6) Insects: A harmless insect is placed in the confinement box with the detainee.
(7) Wall standing: The subject may stand about four to five feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on a wall to support all of his body weight. The subject is not allowed to reposition his hands or feet.
(8) Stress positions: These positions may include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45 degree angle.
(9) Sleep deprivation: The subject is prevented from sleeping, not to exceed 11 hours at a time.
(10) Waterboard: The subject is restrained on a bench with his feet elevated above his head. His head is immobilized and an interrogator places a cloth over his mouth and nose while pouring water onto a cloth. Airflow is restricted for 20 to 40 seconds; the technique produces the sensation of drowning and suffocation.

Despite the many gross distortions which continue to circulate about the CIA program in general, and water boarding in particular (which was deemed to be the worst of the EITs), the water boarding approved EIT was only used on three of the high value detainees in CIA hands: Abu Zubaydah, Abd Al-Rahim Al-Nashiri (captured in November 2002), and Khalid Sheik Muhammed (captured in March 2003). Abu Zubaydah was waterboarded 83 times, the majority of which lasted less than ten seconds and Khalid Sheik Muhammed was waterboarded 180+ times. Apparently, however, there is evidence that some of the interrogators may have engaged in illegal conduct in their individual capacities. Allegations of verbal threats to Abu Zubaydah and pointing an unloaded pistol next to Al-Nashiri’s head have surfaced and are being investigated by the Obama Administration. In any event, in the fall of 2005, as Congress was crafting the Detainee Treatment Act of 2005, the CIA removed water boarding from the list of EITs. No one has been waterboarded (with the exception of US military personnel) since 2005. Although the 2006 Military Commissions Act attempted to circumvent the ruling in Hamdan as applying to the CIA (by redefining certain abuses that could be considered to constitute a war crime under the War Crimes Act, 18 U.S.C. § 2441) President Obama’s Executive Order 13491 issued in January 2009, directs the CIA and all federal agencies to proceed with interrogations “strictly in accord with the principles, processes, conditions, and limitations [FM 2-22.3] prescribed.” Today there is no difference between what the military and other federal agencies can do in terms of conducting an interrogation.

The story of “Half-Dead Bob” reported by U.S. News and World Report typifies the al-Qa’eda mindset while illustrating the American policy of humane treatment of detainees in accordance with the principles of the Geneva Conventions. An Arab captured on the battlefield of Afghanistan was nicknamed “Half-Dead Bob” by the Americans when he arrived at Guantanamo Bay. His nickname derived from the fact that he came to the detention center weighing 66 pounds, suffering from tuberculosis, shrapnel wounds, and having only one lung. The article states:

Army Maj. Gen. [Major General] Michael Dunlavey vividly remembers his first encounter with “Bob.” Dunlavey ran interrogations at the base until November of last year. By the time they met, Bob was making a rapid recovery. He had put on 50 pounds and, sitting across a table from Dunlavey, he thanked him for the food and medical treatment. “General, you are probably a good Christian,” Dunlavey recalls him saying. “And you are probably a good man. But, if I ever get free, I will kill you.”

In the early years following 9/11, weighing the credibility of charges that the United States engaged in torture or ill-treatment as a standard practice was difficult at best. On the one hand, suggestions of torture generally came from media reports based on unnamed sources and anecdotal evidence. On the other hand, the government’s penchant for secrecy regarding interrogation tactics made it next to impossible to make an independent assessment. Today, it is now clear that the United States did not engage in a systemic command directed interrogation regime that violated international or domestic law. In June 2004, President Bush declared, “Look, let me make very clear the position of my government and our country. We do not condone torture. I have never ordered torture. The values of this country are such that torture is not a part of our soul and being.”

Again, apart from the moral argument and speaking strictly from a legal perspective, the United States cannot engage in torture. This is in violation of the Torture Convention and is penalized under domestic law. This is the baseline legal consideration. Following 9/11 both the military and CIA employed tactics that entered an ambiguous legal zone from 2002-2005. As foreboding as some of the outlined techniques may have appeared, there were many techniques that involved acts which were clearly permissible under any analysis. For example, one would be hard pressed to argue that the reported use of female interrogators, trickery, or a day long interrogation session would have ever constituted a prima facie case of even ill-treatment as some have suggested. Further, one could not automatically conclude that the use of awkward positioning of a particular detainee violated legal norms.

Accordingly, from 2002-2005 top legal advisors concluded that the United States could legitimately engage in interrogation practices that did not rise to the level of torture. By late 2005, however, the law quickly changed and continued to the point of absurdity where interrogators today may essentially not question a detainee without the express permission of the detainee. In fact, at Guantanamo Bay, it is forbidden for an American soldier who is not a Muslim to hand any religious object to a detainee as this would be “degrading” and in violation of Common Article 3! In short, our interrogation programs are now driven by “political correctness.”

At the end of the day, the reasonable observer must conclude that allegations that the United States condones and uses torture and ill-treatment as interrogation tools are vastly overstated and often simply taken for granted even by those who should know better. For instance, in his book, The Case for Israel, Dershowitz charged that the United States engages in “modified forms of torture that include physical and psychological components.”

The purpose of detainee interrogation is to glean as much intelligence as possible from individuals who have information associated with the al-Qa’eda terrorist network and all associated terror networks. The goal is to apprehend as many of the terrorists as possible and to prevent future acts of terror on our people with particular concern for the likelihood that our enemies will surely use weapons of mass destruction against us. To date, interrogations have yielded much valuable information. According to the Jacoby Declaration the United States thwarted over 100 terrorist attacks worldwide based on information provided in part from detainee interrogations conducted in 2002. Hopefully, the Senate and the Obama Administration will release similar reports showing how many lives were saved because of the CIA interrogation program.

One matter is fundamentally certain: if al-Qa’eda is to be kept at bay, the United States must rely on detainee interrogation as an integral antiterrorist tool. The need for the interrogator to get information to protect the lives of innocents is a legitimate and perfectly lawful exercise. By its very nature, even the most reasonable interrogation places the detainee in emotional duress and causes stress to his being—both physical and mental. Still, a reasonable interrogation must necessarily be free of torture or ill-treatment.

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