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Enhanced interrogation techniques

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Enhanced interrogation techniques or alternative set of procedures were terms adopted by the George W. Bush administration in the United States to describe interrogation methods used by US military intelligence and the Central Intelligence Agency (CIA) to extract information from individuals captured in the "War on Terror" soon after the events of September 11, 2001.

Some of these techniques are regarded by many in the international press as "torture"[1]. The New York Times chose to refer to them as "harsh" and "brutal" but do not call them "torture" in their news articles.[2] Paul Kane of the Washington Post explained that they do not call it torture out of fear of litigation.[3] The British government has determined some techniques would be classified as torture under European law.[4]

In December, 2005, the United States eliminated use of these techniques by passing the Detainee Treatment Act, and limiting interrogation methods to those explicitly authorized by the United States Army Field Manual.

The Obama administration completed the formation of the High-Value Interrogation Group in January 2010 to interrogate high-value terrorist suspects.[5]

Methods used

At the onset of the War on Terror, only 35 days after the September 11 attacks, the Federal Bureau of Investigation announced it was looking at "alternative interrogation techniques" that might include administering truth serums or renditioning prisoners to foreign countries with "more rigorous and brutal" methods of interrogation.[6]

A bipartisan report in December 2008[7] established that:

harsh interrogation techniques used by the CIA and the U.S. military were directly adapted from the training techniques used to prepare special forces personnel to resist interrogation by enemies that torture and abuse prisoners. The techniques included forced nudity, painful stress positions, sleep deprivation, and until 2003, waterboarding, a form of simulated drowning.

Central Intelligence Agency

Depiction of a waterboarding technique as used in Cambodia during the Khmer Rouge regime but not precisely the same method used by the CIA.

According to ABC News,[8], former and current CIA officials have come forward to reveal details of interrogation techniques authorized in the CIA. These include:

  1. Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes them
  2. Attention Slap: An open-handed slap to the face aimed at causing pain and triggering fear
  3. Belly Slap: A hard open-handed slap to the abdomen. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage
  4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor, for more than 40 hours
  5. Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees Fahrenheit (10 degrees Celsius), while being regularly doused with cold water.
  6. Waterboarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Material is wrapped over the prisoner's face and water is poured over them. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt

In December 2007 CIA director Michael Hayden stated that "of about 100 prisoners held to date in the CIA program, the enhanced techniques were used on about 30, and waterboarding used on just three."[9][10]

The CIA removed waterboarding from its list of enhanced interrogation techniques in 2006. The last use was in 2003.[11]

Department of Defense

The following techniques were being used by the U.S. military:[12][13][14]

  1. Yelling
  2. Loud music, and light control
  3. Environmental manipulation
  4. Sleep deprivation/adjustment
  5. Stress positions
  6. 20-hour interrogations
  7. Controlled fear (muzzled dogs)

In November 2006, former US army Brigadier General Janis Karpinski, in charge of Abu Ghraib prison until early 2004, told Spain's El Pais newspaper she had seen a letter signed by United States Secretary of Defense Donald Rumsfeld that allowed civilian contractors to use techniques such as sleep deprivation during interrogation.'"The methods consisted of making prisoners stand for long periods, sleep deprivation ... playing music at full volume, having to sit in uncomfortably ... Rumsfeld authorised these specific techniques." She said that this was contrary to the Geneva Convention and quoted from the same: "Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind". According to Karpinski, the handwritten signature was above his printed name and in the same handwriting in the margin was written: "Make sure this is accomplished".[15]

On May 1, 2005, The New York Times reported on an ongoing high-level military investigation into accusations of detainee abuse at Guantánamo, conducted by Lieutenant General Randall M. Schmidt of the Air Force, and dealing with: "accounts by agents for the Federal Bureau of Investigation who complained after witnessing detainees subjected to several forms of harsh treatment. The FBI agents wrote in memorandums that were never meant to be disclosed publicly that they had seen female interrogators forcibly squeeze male prisoners' genitals, and that they had witnessed other detainees stripped and shackled low to the floor for many hours."[16]

On July 12, 2005, members of a military panel told the committee that they proposed disciplining prison commander Major General Geoffrey Miller over the interrogation of Mohammed al Qahtani, who was forced to wear a bra, dance with another man, and threatened with dogs. The recommendation was overruled by General Bantz J. Craddock, commander of US Southern Command, who referred the matter to the army's inspector general.[17]

In an interview with AP on February 14, 2008 Paul Rester, chief military interrogator at Guantanamo Bay and director of the Joint Intelligence Group, said most of the information gathered from detainees came from non-coercive questioning and "rapport building," not harsh interrogation methods.[18]

Development of techniques, and training

West coast, Navy SERE Insignia

The CIA interrogation strategies were based on work done by James Elmer Mitchell and Bruce Jessen in the Air Force's Survival Evasion Resistance Escape (SERE) program.[19][20][21][22][23][24] The CIA contracted with the two psychologists to develop alternative, harsh interrogation techniques.[19][20][21][22][23] However, neither of the two psychologists had any experience in conducting interrogations.[21][22][23][25] Air Force Reserve Colonel Steve Kleinman stated that the CIA "chose two clinical psychologists who had no intelligence background whatsoever, who had never conducted an interrogation... to do something that had never been proven in the real world."[22][23][25] Associates of Mitchell and Jessen were skeptical of their methods and believed they did not possess any data about the impact of SERE training on the human psyche.[23] The CIA came to learn that Mitchell and Jessen's expertise in waterboarding was probably "misrepresented" and thus, there was no reason to believe it was medically safe or effective.[21] Despite these shortcomings of experience and know-how, the two psychologists boasted of being paid $1000 a day plus expenses, tax-free by the CIA for their work.[21][22][23]

The SERE program, which Mitchell and Jessen would reverse engineer, was originally designed to be defensive in nature and was used to train pilots and other soldiers on how to resist harsh interrogation techniques and torture were they to fall into enemy hands.[20][23] The program subjected trainees to torture techniques such as “waterboarding . . . sleep deprivation, isolation, exposure to extreme temperatures, enclosure in tiny spaces, bombardment with agonizing sounds at extremely damaging decibel levels, and religious and sexual humiliation.”[26] Under CIA supervision, Miller and Jessen adapted SERE into an offensive program designed to train CIA agents on how to use the harsh interrogation techniques to gather information from terrorist detainees.[19][20][23] In fact, all of the tactics listed above would later be reported in the International Committee of the Red Cross Report on Fourteen High Value Detainees in CIA Custody as having been used on Abu Zubaydah.[27][28]

Stephen Soldz, Steven Reisner and Brad Olson wrote an article describing how the techniques used mimic what was taught in the SERE-program: "the military's Survival, Evasion, Resistance, and Escape program that trains US Special Operations Forces, aviators and others at high risk of capture on the battlefield to evade capture and to resist 'breaking' under torture, particularly through giving false confessions or collaborating with their captors".[13]

The psychologists relied heavily on experiments done by American psychologist Martin Seligman in the 1970s known as “learned helplessness.”[29] In these experiments caged dogs were exposed to severe electric shocks in a random way in order to completely break their will to resist.[29] Mitchell and Jessen applied this idea to Abu Zubaydah during his interrogation.[20][29] Many of the interrogation techniques used in the SERE program, including waterboarding, cold cell, long-time standing, and sleep deprivation were previously considered illegal under U.S. and international law and treaties at the time of Abu Zubaydah’s capture.[30][31] In fact, the United States had prosecuted Japanese military officials after World War II and American soldiers after the Vietnam War for waterboarding and as recently as 1983.[31] Since 1930, the United States had defined sleep deprivation as an illegal form of torture.[20] Many other techniques developed by the CIA constitute inhuman and degrading treatment and torture under the United Nations Convention against Torture and Article 3 of the European Convention on Human Rights.[30]

According to Human Rights First:

Internal FBI memos and press reports have pointed to SERE training as the basis for some of the harshest techniques authorised for use on detainees by the Pentagon in 2002 and 2003.[32]

And Salon stated:

A March 22, 2005, sworn statement by the former chief of the Interrogation Control Element at Guantánamo said instructors from SERE also taught their methods to interrogators of the prisoners in Cuba.[33]

While Jane Mayer reported for The New Yorker:

According to the sere affiliate and two other sources familiar with the program, after September 11th several psychologists versed in SERE techniques began advising interrogators at Guantánamo Bay and elsewhere. Some of these psychologists essentially “tried to reverse-engineer” the SERE program, as the affiliate put it. “They took good knowledge and used it in a bad way,” another of the sources said. Interrogators and BSCT members at Guantánamo adopted coercive techniques similar to those employed in the SERE program.[34]

and continues to report:

many of the interrogation methods used in SERE training seem to have been applied at Guantánamo.."[35][13][36][18]

A bipartisan report in released 2008 stated that:

a February 2002 memorandum signed by President George W. Bush, stating that the Third Geneva Convention guaranteeing humane treatment to prisoners of war did not apply to al-Qaeda or Taliban detainees, and a December 2002 memo signed by former Defense Secretary Donald Rumsfeld, approving the use of "aggressive techniques" against detainees held at Guantanamo Bay, as key factors that lead to the extensive abuses.

[7]

Approval of techniques by U.S. officials

In the Spring of 2002, immediately following Abu Zubaydah’s capture, top US Government officials including Dick Cheney, Colin Powell, George Tenet, Condoleezza Rice, Donald Rumsfeld, and John Ashcroft discussed at length whether or not the CIA could legally use harsh techniques against Abu Zubaydah.[37][38] Condoleezza Rice specifically mentioned the SERE program during the meeting stating “I recall being told that U.S. military personnel were subjected to training to certain physical and psychological interrogation techniques…”[39]

ABC News reported on April 9, 2008 that "the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency." The article states that those involved included:

Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.[40]

In addition, in 2002 and 2003, several Democratic congressional leaders were briefed on the proposed “enhanced interrogation techniques.”[41] These congressional leaders included Nancy Pelosi, the future Speaker of the House, and Representative Jane Harman.[41] Congressional officials have stated that the attitude in the briefings was “quiet acquiescence, if not downright support.”[41] Senator Bob Graham, who CIA records claim was present at the briefings, has stated that he was not briefed on waterboarding in 2002 and that CIA attendance records clash with his personal journal.[42] Harman was the only congressional leader to object to the tactics being proposed.[43] It is of note that in a 2007 report by investigator Dick Marty on secret CIA prisons, the phrase “enhanced interrogations” was stated to be a euphemism for “torture.”[44] The documents show that top U.S. Officials were intimately involved in the discussion and approval of the harsher interrogation techniques used on Abu Zubaydah.[39]

Condoleezza Rice ultimately told the CIA the harsher interrogation tactics were acceptable,[45][46] and Dick Cheney stated "I signed off on it; so did others."[46][47] During the discussions John Ashcroft is reported as saying “Why are we talking about this in the White House? History will not judge this kindly.”[38]

At least one advisor to Condoleezza Rice, Philip Zelikow, opposed the new, harsher interrogation techniques.[48] Upon reading the August 1, 2002 memo which justified the torture, Zelikow authored his own memo contesting the Justice Department's conclusions, since he believed they were legally incorrect.[48] The Bush Administration attempted to collect all of the copies of Zelikow's memo and destroy them, although it is still unclear why.[48][49]

Initial reports and complaints

Senior law enforcement agents with the Criminal Investigation Task Force told MSNBC.com in 2006 that they began to complain inside the U.S. Department of Defense in 2002 that the interrogation tactics used in Guantanamo Bay by a separate team of military intelligence investigators were unproductive, not likely to produce reliable information, and probably illegal. Unable to get satisfaction from the army commanders running the detainee camp, they took their concerns to David Brant, director of the Naval Criminal Investigative Service (NCIS), who alerted Navy General Counsel Alberto J. Mora.[50]

General Counsel Mora and Navy Judge Advocate General Michael Lohr believed the detainee treatment to be unlawful, and campaigned among other top lawyers and officials in the Defense Department to investigate, and to provide clear standards prohibiting coercive interrogation tactics.[51] In response, on January 15, 2003, Rumsfeld suspended the approved interrogation tactics at Guantánamo Bay until a new set of guidelines could be produced by a working group headed by General Counsel of the Air Force Mary Walker. The working group based its new guidelines on a legal memo from the United States Department of Justice Office of Legal Counsel written by John Yoo and signed by Jay S. Bybee, which would later become widely known as the "Torture Memo." General Counsel Mora led a faction of the Working Group in arguing against these standards, and argued the issues with Yoo in person. The working group's final report was signed and delivered to Guantánamo without the knowledge of Mora and the others who had opposed its content. Nonetheless, Mora has maintained that detainee treatment has been consistent with the law since the January 15, 2003 suspension of previously approved interrogation tactics.[52]

Public positions and reactions

Official position of the Bush Administration

The administration adopted the Detainee Treatment Act of 2005 to address the multitude of incidents of detainee abuse. However, in his signing statement, Bush made clear that he reserved the right to waive this bill if he thought that was needed.[53]

Contrary to prior official statements, the Washington Post reported in January 2009 that Susan J. Crawford, convening authority of military commissions, stated in response to the interrogation of Mohammed al-Qahtani, the so-called "20th hijacker" of the September 11 attacks:

"The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent.... You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge", i.e., to call it torture.[54]

The reason Crawford decided not to prosecute al-Qahtani was because his treatment fell within the definition of torture.[54]

"I stand for 8-10 hours a day. Why is standing [by prisoners] limited to four hours?"

According to the February 16, 2008 edition of The Economist, Rumsfeld also wrote in a 2002 memo; "I stand for 8-10 hours a day. Why is standing (by prisoners) limited to four hours?" There have been no comments from either the Pentagon or US army spokespeople in Iraq on Karpinski's accusations.[55]

Debates about whether techniques constitute "torture"

Additionally, there has been debate over whether or not the techniques used constitute "torture".

President Bush stated "The United States of America does not torture. And that's important for people around the world to understand."[56]

A report by Human Rights First (HRF) and Physicians for Human Rights (PFH) stated that these techniques constitute torture.[57] They also cite the Office of the Inspector General report which concluded that

SERE-type interrogation techniques constitute "physical or mental torture and coercion under the Geneva conventions."[13]

Human Rights Watch (HRW) observed that:

The U.S. State Department has condemned in its annualy “Country Reports on Human Rights Practices” as torture or other inhuman treatment many of the techniques that have allegedly been used by the CIA in Iraq, Afghanistan, and at secret detention sites in other countries.[58][59][58]

American media has frequently been criticized for its use of euphemisms for torture. On May 11, 2009, Ted Koppel appeared on BBC's World News America as a contributing analyst on the subject. Koppel stated that using the term "enhanced interrogation technique" was “almost the moral equivalent of saying that rape is an enhanced seduction technique.” [60]

Following NPR's controversial ban on using the word "torture" [61] and Ombudsman Alica Shepard's defense of the policy by stating torture is illegal and that "calling waterboarding torture is tantamount to taking sides",[62] Berkeley Professor of Linguistics Geoffrey Nunberg pointed out how virtually all media around the world, other than what he called the "spineless U.S. media", call these tactics torture.[63] In an article on the euphemisms invented by the media that also criticized NPR, Glenn Greenwald discussed the enabling "corruption of American journalism":

"This active media complicity in concealing that our Government created a systematic torture regime, by refusing ever to say so, is one of the principal reasons it was allowed to happen for so long. The steadfast, ongoing refusal of our leading media institutions to refer to what the Bush administration did as "torture" -- even in the face of more than 100 detainee deaths; the use of that term by a leading Bush official to describe what was done at Guantanamo; and the fact that media outlets frequently use the word "torture" to describe the exact same methods when used by other countries -- reveals much about how the modern journalist thinks."[64]

Over the years numerous incidents have been made public and a United Nations report denounced the abuse of prisoners as tantamount to torture.[65]

A UN report called for cessation of the US-termed "enhanced interrogation" techniques, as the UN sees these methods as a form of torture. The UN report also admonishes against secret prisons, the use of which, is considered to amount to torture as well and should be discontinued.[66]

Former U.S. prosecutor Andrew C. McCarthy writes on waterboarding that he does not personally believe it is torture:

Reasonable minds can and do differ on this. Personally, I don't believe it qualifies. It is not in the nature of the barbarous sadism universally condemned as torture...[67]

Clark Hoyt, the public editor of The New York Times, wrote that its opinion writers may use the word "torture" but its reporters use "harsh" and, in 2009 "brutal," in their news articles because the limits have not been resolved by a U.S. court.[2]

Debates concerning effectiveness or reliability of techniques

Also, according to the New York Times:

Experts advising the Bush administration on new interrogation rules warn that harsh techniques used since 2001 terrorist attacks are outmoded, amateurish and unreliable.[68]

The Washington Post described the report by the Intelligence Science Board:

There is almost no scientific evidence to back up the U.S. intelligence community's use of controversial interrogation techniques in the fight against terrorism, and experts believe some painful and coercive approaches could hinder the ability to get good information, according to a new report from an intelligence advisory group.[36]

The so-called ticking time bomb scenario is frequently used to justify extreme interrogation. Michael Chertoff, the Homeland Security Chief under Bush, declared that 24 "reflects real life" while Supreme Court Justice Antonin Scalia went farther, "Jack Bauer saved Los Angeles... He saved hundreds of thousands of lives. Are you going to convict Jack Bauer?";[attribution needed] however, 24 is fictional and these situations only arise on television. Dick Cheney stated: "I know specifically of reports... that lay out what we learnt through the interrogation process and what the consequences were for the country", yet the only examples publicly released are the claim that the waterboarding of Khalid Shaikh Mohammed helped prevent a planned attack on Los Angeles in 2002, overlooking that he wasn't captured until 2003 and that of Ibn al-Shaykh al-Libi who had confessed that Iraq had trained al Qaeda in the use of weapons of mass destruction which was then used as justification for the subsequent invasion of Iraq, a confession now known to be false.[69][70]

An academic analysis by Professor Shane O'Mara of the Trinity College Institute of Neuroscience concluded that "Prolonged stress from the CIA's harsh interrogations could have impaired the memories of terrorist suspects, diminishing their ability to recall and provide the detailed information the spy agency sought".[71][72]

Destruction of videotapes

In December 2007 it became known that the CIA had destroyed videotapes depicting prisoners being interrogated. They stated that this was done to protect the agents' identities. The New York Times reported that according to "some insiders" an inquiry into the C.I.A.’s secret detention program which analysed these techniques "might end with criminal charges for abusive interrogations."[73] In an Op-ed for the New York Times Tom Kean and Lee Hamilton, chair and vice chair of the 9/11 Commission stated:

As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.[74]

Responding to the so-called "torture memoranda" Scott Horton pointed out

the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous “Night and Fog Decree.”[75]

Jordan Paust concurred by responding to Mukasey's refusal to investigate and/or prosecute anyone that relied on these legal opinions

it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense![76]

March 2009: ICRC report publicly reported

On March 15, 2009, Mark Danner provided a report in the New York Review of Books (with an abridged version in the New York Times) describing and commenting on the contents of a report by the International Committee of the Red Cross (ICRC), Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody (43 pp., February 2007). Report... is a record of interviews with black site detainees, conducted between October 6 and 11 and December 4 and 14, 2006, after their transfer to Guantanomo.[77] (According to Danner, the report was marked "confidential" and was not previously made public before being made available to him.)

Danner provides excerpts of interviews with detainees, including Abu Zubaydah, Walid bin Attash, and Khalid Shaikh Mohammed. According to Danner, the report contains sections on "methods of ill-treatment" including suffocation by water, prolonged stress standing, beatings by use of a collar, beating and kicking, confinement in a box, prolonged nudity, sleep deprivation and use of loud music, exposure to cold temperature/cold water, prolonged use of handcuffs and shackles, threats, forced shaving, and deprivation/restricted provision of solid food. Danner quotes the ICRC report as saying that, "in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment."[77]

Investigation of enhanced interrogation techniques and calls for prosecution

Request for Special Counsel Probe of Harsh Interrogation Tactics

On June 8, 2008, fifty-six House Democrats asked for an independent investigation, raising the possibility that authorising these techniques may constitute a crime by Bush administration officials. The congressmen involved in calling for such an investigation included John Conyers, Jan Schakowsky, and Jerrold Nadler. [78]

The letter was addressed to Attorney General Michael B. Mukasey observing that:

"... information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law."[78]

The letter continues to state:

"Because these apparent 'enhanced interrogation techniques' were used under cover of Justice Department legal opinions, the need for an outside special prosecutor is obvious."[78]

According to the Washington Post the request was denied because Attorney General Michael B. Mukasey felt that:

officials acted in "good faith" when they sought legal opinions, and that the lawyers who provided them used their best judgment.[79]

The article also reported that:

He warned that criminalizing the process could cause policymakers to second-guess themselves and "harm our national security well into the future." [79]

After Cheney acknowledged his involvement in authorising these tactics[80] Senator Carl Levin, chair of the Armed Services Committee, a New York Times editorial, Glenn Greenwald and Scott Horton stressed the importance of a criminal investigation:

A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse.[81]

International calls on Obama to investigate and prosecute

Shortly before the end of Bush's second term newsmedia in other countries were opining that under the United Nations Convention Against Torture the US is obligated to hold those responsible to account under criminal law.[82]

The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment -Professor Manfred Nowak- on January 20, 2008 remarked on German television that, following the inauguration of Barack Obama as new President, George W. Bush has lost his head of state immunity and under international law the U.S. is now mandated to start criminal proceedings against all those involved in these violations of the UN Convention Against Torture.[83] Law professor Dietmar Herz explained Novak's comments by saying that under U.S. and international law former President Bush is criminally responsible for adopting torture as interrogation tool.[83]

Preventing UK courts to investigate

On February 4, 2009 the British High Court ruled that evidence of possible torture in the case of Binyam Mohamed, an Ethiopian-born British resident who is held in Guantanamo Bay, could not be disclosed:

as a result of a statement by David Miliband, the foreign secretary, that if the evidence was disclosed the US would stop sharing intelligence with Britain. That would directly threaten the UK's national security, Miliband had told the court.[84]

Responding to the ruling David Davis, the Conservative MP and former shadow home secretary, commented:

The ruling implies that torture has taken place in the [Binyam] Mohamed case, that British agencies may have been complicit, and further, that the United States government has threatened our high court that if it releases this information the US government will withdraw its intelligence cooperation with the United Kingdom. [84]

The High Court judges also stated that a criminal investigation, by the UK's attorney general, into possible torture has begun.[85]

Legality

After the disclosure of the use of the techniques, debates arose over the legality of the techniques -- whether or not they had violated U.S. or international law.

John Yoo , author of the "torture memos"

Following the attacks of September 11, 2001, several memoranda analysing the legality of various interrogation methods[86] were written by John Yoo from Office of Legal Counsel. The memos, known today as the "torture memos,"[87][75] advocate enhanced interrogation techniques, while pointing out that avoiding the Geneva Conventions would reduce the possibility of prosecution under the US War Crimes Act of 1996 for actions taken in the War on Terror.[88] In addition, a new US definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S.[89]

The Bush administration told the CIA in 2002 that its interrogators working abroad would not violate US prohibitions against torture unless they "have the specific intent to inflict severe pain or suffering", according to a previously secret US Justice Department memo released on 24 July 2008. The interrogator's "good faith" and "honest belief" that the interrogation will not cause such suffering protects the interrogator, the memo adds. "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture", Jay Bybee, then the Assistant Attorney General, wrote in the memo dated August 1, 2002. The 18-page memo is heavily redacted, with 10 of its 18 pages completely blacked out and only a few paragraphs legible on the others.

Another memo released on the same day advises that "the waterboard," does "not violate the Torture Statute." It also cites a number of warnings against torture, including statements by President Bush and a then-new Supreme Court ruling "which raises possible concerns about future US judicial review of the [interrogation] Program."

A third memo instructs interrogators to keep records of sessions in which "enhanced interrogation techniques" are used. The memo is signed by then-CIA director George Tenet and dated January 28, 2003.

The memos were made public by the American Civil Liberties Union, which obtained the three CIA-related documents under Freedom of Information Act requests.[90]

The less redacted version of the August 1, 2002 memo signed by Assistant Attorney General Jay Bybee (regarding Abu Zubaydah) and four memos from 2005 signed by Principal Deputy Assistant Attorney General Steven Bradbury addressed to CIA and analysing the legality of various specific interrogation methods, including waterboarding, were released by Barack Obama administration on April 16, 2009[91]

Following the release of the CIA documents and now released from non disclosure agreements he had signed Philip Zelikow, a former State Department lawyer and adviser to then-Secretary of State Condoleezza Rice, stated that he had argued it was unlikely that "any federal court would agree (that the approval of harsh interrogation techniques) ... was a reasonable interpretation of the Constitution." He was told to destroy copies of his own memo and claimed that the Bush Administration had ordered that other dissenting legal advice be collected and destroyed.[92][93]

US Supreme Court Justice Antonin Scalia said on BBC Radio 4 that since these methods are not intended to punish they do not violate the Eighth Amendment to the United States Constitution, barring "cruel and unusual punishment", and as such may not be unconstitutional.[94]

The US Supreme Court ruled in Hamdan v. Rumsfeld that, contrary to what the Bush administration advocated, Common Article 3 of the Geneva Conventions applies to all detainees in the war on terrorism and as such the Military Tribunals used to try suspects were violating the law. The Court reaffirmed that those involved in mistreatment of detainees violate US and international law.[95]

On May 19, 2006, the UN Committee against Torture issued a report stating the U.S. should stop, what it concludes, is "ill-treatment" of detainees, since such treatment, according to the report, violates international law.[66]

Opinions of human rights organizations

A report by Human Rights First (HRF) and Physicians for Human Rights (PFH) stated that these techniques constitute torture.[57] Their press release said:

The report concludes that each of the ten tactics is likely to violate U.S. laws, including the War Crimes Act, the U.S. Torture Act, and the Detainee Treatment Act of 2005.[57]

Ban on interrogation techniques

On December 14, 2005, the Detainee Treatment Act was passed into law, specifically clarifying that interrogations techniques be limited to those explicitly authorized by the Army Field Manual.[96] On February 13, 2008 the US Senate, in a 51 to 45 vote, approved a bill limiting the number of techniques allowed to only "those interrogation techniques explicitly authorized by the 2006 Army Field Manual."[97] The Washington Post stated:

The measure would effectively ban the use of simulated drowning, temperature extremes and other harsh tactics that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks.[98]

President George W. Bush has said in a BBC interview he would veto such a bill[98][99] after previously signing an executive order that

allows "enhanced interrogation techniques" and may exempt the CIA from Common Article 3 of the Geneva Conventions.[97]

According to Jane Mayer, during the transition period for then President-elect Barack Obama, his legal, intelligence, and national-security advisers had met at the CIA’s headquarters in Langley to discuss "whether a ban on brutal interrogation practices would hurt their ability to gather intelligence," and among the consulted experts:

There was unanimity among Obama’s expert advisers... that to change the practices would not in any material way affect the collection of intelligence.[100]

On January 22, 2009 President Obama signed an executive order requiring the CIA to use only the 19 interrogation methods outlined in the United States Army Field Manual on interrogations "unless the Attorney General with appropriate consultation provides further guidance."[101]

See also

References

  1. ^ McQuaid, John. The semantics of torture. guardian.co.uk -- Comment-is-free 13 May 2009.
  2. ^ a b Hoyt, Clark, Telling the Brutal Truth, The New York Times, April 25, 2009, (archive)
  3. ^ Kane, Paul, Post Politics: Congressional Investigations, Pelosi and Harman, More, Washington Post, April 23, 2009
  4. ^ Burns, John F., Britain Discloses Data on Ex-Detainee, New York Times, February 10, 2010
  5. ^ Tapper, Jake, Long-Awaited High-Value Interrogation Group -- HIG -- Finally Formed, ABC News, February 6, 2010
  6. ^ Independent Online, FBI might drug WTC suspects to get truth, October 22, 2001
  7. ^ a b US detainee abuses approved by senior officials: Senate report by Devin Montgomery, JURIST, December 12, 2008.
  8. ^ "CIA's Harsh Interrogation Techniques Described". ABC News. 2005. {{cite journal}}: Unknown parameter |month= ignored (help)
  9. ^ Lawmakers Back Limits on Interrogation Tactics By SCOTT SHANE, New York Times, December 7, 2007
  10. ^ Lawyers for Detainee Refer In Filing to More CIA Tapes By Carol D. Leonnig, Washington Post, January 19, 2008
  11. ^ Exclusive: Only Three Have Been Waterboarded by CIA, ABC News, November 02, 2007
  12. ^ Herman, Arthur, The Gitmo Myth and the Torture Canard, Commentary, June 2009
  13. ^ a b c d The Pentagon's IG Report Contradicts What the APA Has Said About the Involvement of Psychologists in Abusive Interrogations - A Q&A on Psychologists and Torture By Stephen Soldz (Director, Center for Research, Evaluation, and Program Development & Professor, Boston Graduate School of Psychoanalysis; University of Massachusetts, Boston), Steven Reisner (Senior Faculty and Supervisor, International Trauma Studies Program, Mailman School of Public Health, Columbia University; Clinical Assistant Professor, Department of Psychiatry, New York University Medical School), and Brad Olson (Assistant Research Professor, at Northwestern University), CounterPunch, June 7, 2007
  14. ^ Review of DoD-Directed Investigations of Detainee Abuse, Office of the Inspector General of the Department of Defense, August 25, 2006
  15. ^ Rumsfeld ordered abuses and violation of Geneva Convention in Iraq says former U.S. General
  16. ^ Lewis, Neil A.; Schmitt, Eric (May 5, 2005). "Inquiry Finds Abuses at Guantánamo Bay". The New York Times.
  17. ^ "Investigators recommended disciplining Gitmo commander". CNN.com. 2005. Retrieved 2006-03-19. {{cite web}}: Unknown parameter |month= ignored (help)
  18. ^ a b Chief Guantanamo interrogator says most info not forced from detainees Eric Firkel, JURIST, February 17, 2008
  19. ^ a b c Brian Ross, CIA- Abu Zubaydah: Interview with John Kiriakou: Transcript ABC News, December 10, 2007
  20. ^ a b c d e f Jane Meyer, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals Doubleday Publishing, July 15, 2008
  21. ^ a b c d e Brian Ross, Matthew Cole, and Joseph Rhee The CIA's $1000 a Day Specialists on Waterboarding, Interrogations ABC News, April 30, 2009
  22. ^ a b c d e Report: Two Psychologists Responsible for Devising CIA Torture Program Fox News, April 30, 2009
  23. ^ a b c d e f g h Katherine Eban Rorschach and Awe Vanity Fair, July 17, 2007
  24. ^ Joby Warrick and Peter Finn Harsh Tactics Readied Before Their Approval The Washington Post, April 22, 2009
  25. ^ a b Katherine Eban, Torture Memos Link Lawyers and Psychologists Vanity Fair, April 17, 2009
  26. ^ United States’ “Disappeared” CIA Long-term “Ghost Detainees” Human Rights Watch, October 2004
  27. ^ International Committee of the Red Cross Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody International Committee of the Red Cross, February 2007
  28. ^ Derek Summerfield Fighting “terrorism” with torture: torture is a form of terrorism: there are no justifications for it British Medical Journal, April 12, 2003
  29. ^ a b c Amy Goodman The Dark Side: Jane Mayer on the Inside Story of How the War on Terror Turned Into a War on American Ideals, Interview Transcript Democracy Now, July 18, 2008
  30. ^ a b Enforced Disappearance, Illegal Interstate Transfer, and Other Human Rights Abuses Involving the UK Overseas Territories: Executive Summary Reprieve
  31. ^ a b Walter Pincus, Waterboarding Historically Controversial The Washington Post, October 5, 2006
  32. ^ Command's Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan Abed Hamed Mowhoush, Human Rights First
  33. ^ Torture teachers - An Army document proves that Guantánamo interrogators were taught by instructors from a military school that trains U.S. soldiers how to resist torture By Mark Benjamin, Salon, June 29, 2006
  34. ^ The Experiment - The military trains people to withstand interrogation. Are those methods being misused at Guantánamo? by Jane Mayer, The New Yorker, July 11, 2005
  35. ^ Whatever it takes. The politics of the man behind “24.” by Jane Mayer, The New Yorker, February 12, 2007
  36. ^ a b Interrogation Research Is Lacking, Report Says Few Studies Have Examined U.S. Methods By Josh White, Washington Post January 16 2007
  37. ^ Mark Mazzetti Bush Aides Linked to Talks on Interrogations
  38. ^ a b Bush aware of advisers’ interrogation talks ABC News, April 11, 2008
  39. ^ a b Mark Mazzetti Bush Aides Linked to Talks on Interrogations New York Times, September 24, 2008
  40. ^ Top Bush Advisors Approved 'Enhanced Interrogation' - Detailed Discussions Were Held About Techniques to Use on al Qaeda Suspects, By JAN CRAWFORD GREENBURG, HOWARD L. ROSENBERG and ARIANE de VOGUE, ABC News, April 9, 2008
  41. ^ a b c Joby Warrick and Dan Eggen Hill Briefed on Waterboarding in 2002 The Washington Post, December 9, 2007
  42. ^ CIA Chief Rebuts Pelosi's Charges The Washington Post, May 15, 2009
  43. ^ Report: Top Members of Congress Were OK With Waterboarding in 2002 Fox News, December 9, 2007
  44. ^ Molly Moore Report Gives Details on CIA Prisons The Washington Post, June 9, 2007
  45. ^ As Bush Adviser, Rice Gave OK to Waterboard Fox News, April 22, 2009
  46. ^ a b Senate Report: Rice, Cheney OK'd CIA use of waterboarding CNN, April 23, 2009
  47. ^ Jason Leopold Cheney Admits He 'Signed Off' on Waterboarding of Three Guantanamo Prisoners Atlantic Free Press, December 29, 2008
  48. ^ a b c Rachel Maddow Interview of Philip Zelikow, Transcript MSNBC, April 23, 2009
  49. ^ Michael Isikoff We Could Have Done This the Right Way Newsweek, April 25, 2009
  50. ^ "Gitmo interrogations spark battle over tactics". 2006. Retrieved 2006-11-05. {{cite web}}: Unknown parameter |month= ignored (help)
  51. ^ "Memorandum for Inspector General, Department of the Navy. Statement for the record: Office of General Councel involvement in interrogation issues" (PDF). 2005. Retrieved 2006-03-19. {{cite web}}: Unknown parameter |month= ignored (help)
  52. ^ "Tribunals Didn't Rely on Torture". Washington Post: A20. 2004. {{cite journal}}: Unknown parameter |month= ignored (help)
  53. ^ U.S. Cites Exception in Torture Ban McCain Law May Not Apply to Cuba Prison, by Josh White and Carol D. Leonnig, Washington Post, March 3, 2006]
  54. ^ a b Detainee Tortured, Says U.S. Official Trial Overseer Cites 'Abusive' Methods Against 9/11 Suspect by Bob Woodward, Washington Post, January 14, 2009
  55. ^ — "Rumsfeld okayed abuses says former US Army general" Reuters News
  56. ^ The President says "We do not torture." We look at what has surfaced so far FactCheck, December 19, 2005
  57. ^ a b c Human Rights First (HRF) and Physicians for Human Rights (PFH) report
  58. ^ a b Descriptions of Techniques Allegedly Authorized by the CIA by Human Rights Watch, November 21, 2005
  59. ^ "Enduring Freedom": Abuses by U.S. Forces in Afghanistan, Appendix: U.S. Criticisms of Mistreatment and Torture Practices, by Human Rights Watch, March 7, 2004
  60. ^ Baker, Brent, Koppel: 'Enhanced Interrogation Technique' Like 'Rape Is an Enhanced Seduction Technique', NewsBusters, May 12, 2009
  61. ^ The still-growing NPR "torture" controversy Salon July 2, 2009
  62. ^ Torturous Wording NPR (transcript) June 26, 2009
  63. ^ Calling a Spade a Spade: Use of the Word "Torture" KPCC June 26, 2009
  64. ^ The NYT's nice, new euphemism for torture Salon June 6, 2009
  65. ^ UN calls for Guantanamo closure BBC, Read the full UN report into Guantanamo Bay, February 16, 2006
  66. ^ a b UN Committee against Torture report
  67. ^ McCarthy, Andrew C., Waterboarding and Torture, National Review, October 26, 2007
  68. ^ Scott Shane, Mark Mazzetti (2007-05-30). "Advisers Fault Harsh Methods In Interrogation". New York Times. Retrieved 2009-09-13.
  69. ^ '24' is fictional. So is the idea that torture works The Times, April 23, 2009
  70. ^ Waking up to torture truths Chicago Tribune, April 23, 2009
  71. ^ "Report: CIA interrogations informed by bad science" by Pamela Hess, Associated Press, September 21, 2009
  72. ^ "You can't trust a tortured brain: Neuroscience discredits coercive interrogation", September 21, 2009
  73. ^ Tapes by C.I.A. Lived and Died to Save Image By SCOTT SHANE and Mark Mazzetti, New York Times, December 30 2007
  74. ^ Tom Kean and Lee Hamilton
  75. ^ a b Suggested origin of legal justifications
  76. ^ Just Following Orders? DOJ Opinions and War Crimes Liability Jordan Paust, JURIST, February 18, 2008
  77. ^ a b ICRC report
  78. ^ a b c Lawmakers Urge Special Counsel Probe of Harsh Interrogation Tactics by: Joby Warrick, The Washington Post, June 08, 2008
  79. ^ a b Mukasey Rejects Inquiry Carrie Johnson, Washington Post, July 11, 2008
  80. ^ Transcript: Cheney Defends Hard Line Tactics In Exclusive Interview With ABC News, Vice President Dick Cheney Opens Up About His Hard Line Tactics ABC News, December 15, 2008
  81. ^ War crimes investigation warranted
  82. ^ Overseas, Expectations Build for Torture Prosecutions By Scott Horton, No Comment, January 19, 2009
  83. ^ a b Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment calls for prosecution
  84. ^ a b Investigation by other countries obstructed
  85. ^ Ministers face torture pressure BBC News, 4 February 2009
  86. ^ The Interrogation Documents: Debating U.S. Policy and Methods the memos written as part of the war on terrorism
  87. ^ Yoo memos referred to as "torture memos"
  88. ^ War crimes warning
  89. ^ US definition of torture
  90. ^ Previously secret torture memo released, CNN, July 24, 2008
  91. ^ Abrams, Joseph, Despite Reports, Khalid Sheikh Mohammed Was Not Waterboarded 183 Times, Fox News, April 28, 2009
  92. ^ Was Critical Note Muzzled By Bush White House? NPR April 23, 2009
  93. ^ The OLC "torture memos": thoughts from a dissenter Philip Zelikow April 21, 2009
  94. ^ Scalia thinks it is not illegal US judge steps in to torture row BBC, February 12, 2008
  95. ^ A Supreme Rebuke Bush Loses Guantanamo Case Marjorie Cohn -professor at Thomas Jefferson School of Law, president-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists- CounterPunch, June 30, 2006
  96. ^ U.S.: Landmark Torture Ban Undercut, Human Rights Watch, December 15, 2005
  97. ^ a b Senate backs intelligence bill restricting CIA interrogation tactics Mike Rosen-Molina, JURIST, February 13, 2008
  98. ^ a b Senate Passes Ban On Waterboarding, Other Techniques By Dan Eggen, Washington Post, February 14, 2008
  99. ^ Bush to veto intelligence bill restricting CIA interrogation tactics Jaime Jansen, Jurist, February 15, 2008
  100. ^ Behind the Executive Orders by Jane Mayer, The New Yorker, January 25, 2009
  101. ^ Obama issues torture ban

Further reading

  • William Ranney Levi, "Interrogation's Law" (2009)
  • Stephen Grey, Ghost Plane: The True Story of the CIA Torture Program (2007)
  • Alfred W. McCoy, A Question Of Torture: CIA Interrogation from the Cold War to the War on Terror (2006)
  • U.S. Government, Coercive Interrogation: U.S. Views on Torture 1963-2003
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