Professor discusses legal and ethical issues revealed in report on CIA’s use of torture
International law expert Robert Sloane explains political environment that led to “enhanced interrogation” techniques.
The Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program is a 6,000-page report that details abusive actions by CIA officials against detainees held by the US between 2001 and 2006. A 525-page portion of the report that includes key findings and an executive summary was released to the public in December 2014. Boston University School of Law Professor Robert Sloane weighs in on the legal and political forces that shaped US policies and attitudes around the use of torture in the interrogation of individuals suspected of involvement in the 9/11 attacks.
How could this happen?
It would be too simple to cite one cause. Fear played a large role. It is sobering to see how easily and quickly countries that traditionally were committed to the values of human rights, democracy, liberalism, and the rule of law abandon those values in the face of fear. Before 9/11, with very few exceptions, most everyone agreed on torture’s illegality and moral repugnance—Republican and Democrat, liberal and conservative. According to a recent article in The New York Times, nearly 60% of Americans now believe that torture can be justified often or sometimes.
And, the debate has become whether torture “works.” It’s unclear what that means, although, based on the evidence to date, it seems to suffice that torture might produce valuable intelligence sometimes. For former Vice President Dick Cheney, speaking on Meet the Press, it’s acceptable to torture detainees by waterboarding, “rectal hydration” (i.e., rape), and comparable methods even if, as the Senate Report establishes, at least 25% of those subjected to such “enhanced interrogation techniques,” not only knew nothing of value, but were wholly innocent: “I have no problem [with their torture] as long as we achieve our objective,” he said. Lawyers, too, played a large role in enabling torture by providing it with legal cover and, indeed, respectability as a tool of national security. That said, it’s telling that virtually all of the support for torture has come from civilian lawyers and political appointees, while current and former military lawyers and leaders, beginning with Colin Powell, have generally been the ones opposed to the practice, warning that it’s not only not helpful, but counterproductive.
After 9/11, the national security imperative to avoid another serious terrorist attack took precedence over legal, moral, and even pragmatic objections—that is, based on studies of torture’s effects and efficacy at eliciting information—to practices that would have provoked outrage if not for the pervasive atmosphere of fear and desire for vengeance that gripped the country in the months and years after 9/11. Senior officials in government were told by the CIA, David Addington (Dick Cheney’s former legal counsel and chief of staff), and others that “countless more Americans will die” unless detainees, such as Abu Zubaydah, disclosed information that interrogators believed he had about imminent attacks. And in their view, despite the lack of evidence of its efficacy, that required torture at times.
But torture is metastatic, and what begins with isolated cases justified by the pernicious “ticking-time bomb” hypothetical, spreads to mundane cases and becomes a regular practice in interrogations. Authorization to engage in “limited” torture seldom if ever remains within those limits and often, as it apparently did with the CIA, culminates in unauthorized methods. The metastatic nature of torture is perhaps the chief reason why, however awful the authorized methods of interrogation may seem, so-called rogue agents and others went well beyond those techniques in the actual interrogations, leading, in at least one case, to the victim’s death.
By early 2002, most of these techniques were being used by the CIA—again, despite the lack of evidence that they produce better or more reliable intelligence. It would be misleading to say that torture never “works,” in part because that depends on what it would mean for us to say that torture “works” Several scholars who favor a limited regime of legally authorized “enhanced interrogation” point to a handful of cases in which torture might have been effective at coercing information. But few if any of these cases involve the revelation of startling facts about imminent threats of the sort imagined in the ticking time-bomb scenario proffered to justify torture or cruel, inhuman, and degrading treatment or punishment (CIDT). Despite countless assertions that torture has successfully elicited a host of facts and information that prevented major terrorist attacks and saved lives, to date, proponents have produced no concrete evidence of even a single such case.
If, as the CIA says and much of the public assumes, the object of techniques of torture and CIDT is to acquire information, the evidence suggests that such techniques seldom produce reliable and timely information. More traditional methods, especially rapport building, more rapidly and accurately elicit reliable information from recalcitrant detainees. Abu Zubaydah, for instance, a “high-value detainee,” gave authorities far more relevant information in the months before we began to torture him because of the belief that he continued to withhold critical facts about forthcoming attacks.
To my mind, one of the most discouraging legacies of our experiment with torture is that it is now understood as a debatable issue of partisan politics, that is, a question of policy rather than among the most fundamental of human rights. Today, it is not just figures like Cheney, but a large sector of the public, that believes torture may be justified, that it “works,” and that it is an essential tool of national security.
Torture had for decades been categorically prohibited, criminalized by several overlapping laws and morally abhorrent to most US citizens. By reframing the issue of torture—as one of partisan politics and sound national security policy rather than a practice categorically prohibited by the law of war, international human rights law, and US law—the United States has seriously set back a half century or more of efforts to categorically ban the practice. The kind of limited investigation contained in the Senate Report into a practice as serious as widespread, and authorized, torture is now compared to blatantly political independent counsel investigations.
What type of history does the US have with “enhanced interrogation” or torture?
The mantra in many circles, repeated by President Obama, among many others, is that “this is not who we are” or that torture does not reflect “our values.” We like to believe this is true. In fact, it is overstated at a minimum. The United States has practiced torture before in our history. It has almost invariably been justified, as in the post-9/11 era, by the supposed necessity of torture to national security. But we should not forget, for example, that the torture of slaves had been routine in this country for decades before the Civil War.
Why isn’t the Obama administration prosecuting the actions of the CIA and its operatives?
Since taking office, President Obama has tried to walk a fine line between repudiating the actions of his predecessor and its administration’s response to 9/11, on the one hand, and, on the other, preserving alliances within the national security community. The Obama administration relies substantially on the CIA and its operatives for national security, and it cannot, or so it believes, alienate or antagonize the CIA’s leadership. The administration also fears that prosecution would be perceived as a political tool, both by the Republican party and by sectors of the American public. It worries that the legal precedent set by prosecuting high-ranking members of a former administration will come back to haunt Obama, among others, in the future. One might imagine, for example, a future President Rand Paul choosing to prosecute a former President Obama and members of his administration for the extrajudicial killing of US citizens by drones or for uses of force unauthorized by Congress.
The problem, from an international legal perspective, is that under Articles 4 through 9 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), President Obama remains under a fairly unambiguous obligation to at least investigate cooperatively and, if credible evidence exists, as it does at this stage, either to prosecute or extradite those accused of torture within the meaning of the Convention.
How did these actions get authorized, or deemed legal, under the Bush administration?
There’s no single answer. It’s a complex story, with several interlocking threads, and it’s recounted well in a number of journalistic accounts, for example, Jane Mayer’s The Dark Side. But perhaps most notoriously, the Department of Justice’s Office of Legal Counsel issued several memoranda that twisted the law into knots to come to the conclusion that torture could lawfully be used against detainees in the “Global War on Terror.” As the now-infamous memorandumprepared by John Yoo and Jay Bybee defined it, torture’s use of the phrase “severe pain or suffering, whether mental or physical” in its definition means only pain and suffering of a degree comparable to what would be expected of a person suffering multiple organ failure or on the verge of death. It is difficult to imagine what techniques would qualify as torture under that definition.
The same memo concluded that torture could only be criminal if the interrogator had the “specific intent” to make the victim suffer; and because interrogators, specifically intended only to elicit life-saving information, not to cause the torture victims to suffer severe pain and suffering so defined, their actions cannot be deemed torture. That is not, in fact, as most first-year law students would know, what specific intent means—certainly not in the context of good-faith legal interpretation of CAT, to which the United States is a party.
Finally, the memo argued that torturers would likely have a valid necessity defense if their actions, even though ordinarily criminal, could be said to have been undertaken in the sincere belief that they were necessary to avert a greater evil, namely, a serious terrorist attack. In short, the memo eviscerated the criminal prohibition on torture and, because it issued from the Office of Legal Counsel, which advises the President on the legality of executive branch action, provided what’s been referred to as a get-out-of-jail-free card for those who authorized, facilitated or engaged in the practice.
That memorandum was later withdrawn, though its replacement did not repudiate torture or cruel, inhuman, and degrading treatment or punishment (CIDT). Regardless, even today, the definition of torture has been (in part deliberately) mangled in the public debate. Until the post-9/11 era, for example, the United States uniformly regardedwaterboarding as torture. No one would have suggested otherwise. Indeed, it is well-known that in World War II, theUnited States prosecuted Japanese defendants for waterboarding as a form of torture. Yet, remarkably, as Cheney argued recently in defense of waterboarding, several recent attorneys general have agreed that it is not torture.
How has our system allowed for torture/enhanced interrogation?
The system, if that means the US or international legal system, does not formally allow torture or CIDT. But in a practical sense, the political systems of states worldwide, and their tacit practices, tolerate and legitimize torture to varying extents. History shows that all it takes is a certain level of national fear to transform torture from among the most serious human rights violations into a legitimate tool of policy in national security.
That’s why the Convention Against Torture says, in language that could not be more unequivocal, that “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The drafters understood that it’s precisely in these circumstances that the temptation to adopt torture becomes the greatest. To cite these circumstances as the chief legal rationale for departing from the categorical prohibition on torture, or justifying its violation, as OLC memoranda did, is tragically ironic.
The system also enables torture, in part, because it hides knowledge of the existence, scope, and extent of the practice from the public. The outrage that some sectors of the public have been expressing now is appropriate, in my view, but oddly belated. Much of the information in the Senate Report is not new. For many years now, we have known that the Bush administration used torture in multiple contexts: Guantanamo, “black sites,” Afghanistan, Iraq (including but not limited to the Abu Ghraib scandal), and elsewhere. But so long as the government can keep knowledge from the public, or minimize scandals like Abu Ghraib as the product of just a few “bad apples,” it can avoid accountability.
Justice Louis Brandeis famously said that “[p]ublicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” The release of the Senate Intelligence Committee report may well be mobilizing a public response among some citizens that would have emerged much earlier had the details of the widespread practice of torture by our government been more widely known and reported. That’s part of the reason the CIA, former Vice President Cheney, and others have fought tooth and nail to prevent the report’s release, even while still maintaining that the methods described in the report, with perhaps a few exceptions, were legal, and hence there’s nothing to hide.
Can these actions be deemed war crimes?
Yes. Without belaboring the legal technicalities, at least two treaties to which the United States is party, as well as domestic laws passed to implement them, criminalize the practices revealed in the Senate Intelligence Committee Report, as well as others that we have known about for years now. (Whether torture is a war crime or a crime under international human rights law, or both, depends on, among other factors, the status of the tortured detainee, the circumstances in which he is held, for example, within or beyond the scope of an armed conflict within the ambit of the Geneva Conventions, and other matters.
The UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), which the United States has ratified, prohibits and criminalizes torture defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Both international and US law also provide most detainees in the conflict formerly known as the Global War on Terrorwith, at a minimum, the protections of Common Article III to the Geneva Conventions, which establishes, so to speak, a minimum “floor” of treatment that applies to any detainee in armed conflict. It prohibits, among other abusive practices, “the following acts . . . at any time and in any place whatsoever”: “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”; and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
Federal law also criminalizes torture. The War Crimes Act of 1996, for example, had criminalized torture unequivocally as a violation of the grave breaches provisions of the Geneva Conventions and of Common Article III. But after the Supreme Court held in the 2006 Hamdan v. Rumsfeld decision that detainees were entitled to the protections of Common Article III, the administration retroactively changed the law, immunizing much of the previous conduct in violation of Common Article III from prosecution and, proactively, purported to give the President rather than the judiciary the right to decide what qualifies as CIDT under Common Article III.
Is there any accountability to governments outside the US?
Yes. As a party to CAT, the United States must report periodically on its laws and practices to abide by CAT, as it recently did. Based on that report, it should be obliged at least to investigate, and likely to prosecute or extradite, those suspected of perpetrating torture. In other countries, moreover, the concept of universal jurisdiction embodied in some of their laws enables certain courts, subject to varying requirements, to prosecute any person for acts of torture, despite the absence of conventional jurisdictional links such as nationality or territoriality. In general, the legal system that’s emerged in international criminal law today, both based on universal jurisdiction statutes and in the permanent International Criminal Court, defers to local prosecutions unless a state proves “unable or unwilling” to prosecute international criminals itself. Previously, some European courts dismissed prosecutions of US officials on this ground, stating that there’s no reason to think the United States can’t or won’t prosecute as required. At this stage, that no longer seems plausible. So a slew of figures may well be concerned about travel abroad to certain foreign nations today.
In practice, the sheer geopolitical and economic power of the United States will almost certainly prevent prosecutions in the near future. But one might have said the same of General Pinochet of Chile in the 1970s. The Prosecutor of the International Criminal Court, Fatou Bensouda, also has jurisdiction to prosecute certain acts of torture that took place on the territory of states parties to the Rome Statute, and she has opened a preliminary investigation into some practices recently. The United States is not a party to the Rome Statute, and so torture within the territory of the United States, or by US nationals, would not alone suffice for the ICC to have jurisdiction. But US officials likely tortured prisoners and detainees at “black sites” and detention centers in other nations that are parties to the Rome Statute, including Afghanistan and Poland, for example, and consequently, the Court might be entitled to prosecute certain acts of systematic torture that took place on their territory. Once again, this may not be a very realistic situation now for pure real politick reasons. But circumstances change.
Have the “enhanced interrogation” techniques been used by other countries?
Yes. But this phrase is an invidious euphemism. The phrase “enhanced interrogation” appears first in a legal memorandum advising Nazi leadership that certain methods of torture or CIDT would be permissible against detainees, such as Marxists, Communists, and other “undesirables.” More generally, many authoritarian states of course pay little or no attention to the prohibition on torture. Indeed, that’s one of the reasons the United States engaged in so-called “extraordinary rendition” of terrorism suspects to countries like Egypt and Syria, which they understood would have no compunction about torture methods as or more extreme than those disclosed in the Senate Select Committee Report. The United States detained Maher Arar, for example, at JFK International Airport on his way back to Canada, and rendered him, with no due process, to Syria, where he was detained and tortured repeatedly for some nine months before his complete innocence became clear. Arar’s is not an isolated case. Even before the Senate Report, we knew of several others. But we also now know that 26 innocent individuals were tortured by the United States, 25% of those identified as victims of torture in the Senate Report. To my mind, it is breathtaking that former Vice President Dick Cheney regards this as unproblematic so long as “we get the guys who did 9/11.” The best evidence, at present, suggests that torture played no role in that regard and, to the contrary, has in many respects been counterproductive.
But the United States is by no means the sole offender, even among liberal states. The United Kingdom, for example, used torture in its conflict with Irish terrorism. In 1978, in a well-known decision that the US Department of Justice and others have, remarkably, used to justify cruel, inhuman, and degrading treatment or punishment (CIDT), the European Court of Human Rights (ECHR) scrutinized five methods of so-called “coercive interrogation” the United States has also used: techniques such as subjection to severe noise, sleep, food, and water deprivation, forced wall standing, and hooding. The Court, at that time, found the methods to constitute CIDT in combination, leading some to conclude that they were therefore legitimate if used in isolation. The United Kingdom offers just one example: history suggests that no nation or people is immune.
What is the legal process of determining actions as “enhanced interrogation” techniques vs. torture?
The term “enhanced interrogation techniques” is not a legal term. It is an Orwellian euphemism that we, consciously or not, borrowed, as noted, from Nazi Germany, to avoid the term torture. As far as international law is concerned, the only relevant distinction in this regard is between CIDT and torture. The former’s meaning is disputed but involves abuses of a lesser severity or distinct nature. But it should be stressed that both violate international law; both are crimes; and both are prohibited by CAT and the Geneva Conventions, together with several other treaties, customary international law, and US domestic law. The distinction between CIDT and torture potentially matters, however, in that the “prosecute or extradite” obligation, formally at least, applies only to torture as distinct from CIDT under Article 16 of CAT. That said, CIDT remains a crime under both US and international law, especially insofar as it’s committed in the context of what we have treated as a war in which Common Article III of the Geneva Conventions, as the Supreme Court held in Hamdan, applies.