Administration Confirms Its View that CIA May Engage in "Cruel, Inhuman and Degrading" Treatment

Marty Lederman

In an important story in tomorrow's New York Times, Doug Jehl and David Johnston report on how the Administration successfully opposed enactment of a provision in recent legislation that would have specifically prohibited the CIA from engaging in "cruel, inhuman and degrading" treatment of detainees. A letter from National Security Adviser Condoleezza Rice to members of Congress "expressed opposition to the measure on the grounds that it 'provides legal protections to foreign prisoners to which they are not now entitled under applicable law and policy.'"

This confirms the theory I wrote about in a four-part post here a few days ago: that the Administration has concluded that the CIA is not presently prohibited from engaging in cruel, inhuman and degrading conduct when it interrogates suspected Al Qaeda operatives outside U.S. jurisdiction--even though such conduct would be unconstitutional if conducted by the CIA within the U.S., and would be prohibited by law, treaty and executive directive if conducted by the Armed Forces even outside the U.S.

The article further confirms my understanding that the new OLC Memo on torture, although a dramatic improvement over the 2002 OLC Memo, nevertheless does not affect DOJ's previous advice that the CIA may engage in particular highly coercive techniques that fall just short of statutory "torture." The article reports "[c]urrent and former government officials" as saying that "specific interrogation methods were addressed in a series of still-secret documents, including an August 2002 one by the Justice Department that authorized the C.I.A.'s use of some 20 interrogation practices. The legal opinion was sent to the C.I.A. via the National Security Council at the White House. Among the procedures approved by the document was waterboarding, in which a subject is made to believe he might be drowned. The document was intended to guide the C.I.A. in its interrogation of Mr. Zubaydah and a handful of other high-level detainees. Instead, it led to a series of exchanges between the Justice Department and the intelligence agency as they debated exact procedures to be employed against individual detainees."

NOTE: The NYT story identifies me as a former DOJ attorney who "believe[s]" that the administraion had "always wanted to leave a loophole where the C.I.A. could engage in actions just up to the line of torture." Just to be clear: That conclusion is simply what I deduced from documents that have been made public after I left the Department (as reflected in the series of posts below). I did not learn of anything about this issue while at DOJ, and nothing I have written or said reflects any confidential information to which I was privy at OLC.

UPDATE: A couple of readers have questioned whether most Americans will perceive this development as such a bad thing, or whether they might instead respond: "The Administration is waterboarding Khalid Shaikh Mohammed? Damn, I sure hope so."

Sadly, I concede that many, perhaps most, readers of the Times story might have such a response--at least at a gut level. I think that it would be extremely unfortunate for us to act in accord with that impulse, and that the costs of going down that road are far greater than the benefits. But although I have a strong moral intuition about such things, I'm hardly an authority on the empirical questions of consequences. I'll leave it to others with much more experience and authority than I to speak to those questions much more effectively and eloquently than I could hope to do. I'll simply make four brief points in response:

1. The conduct we're talking about here is conduct that would not only be unlawful if committed by the Armed Forces, but that would also presumptively be unconstitutional if even the CIA engaged in it here in the U.S. (The constitutional test -- conduct that "shocks the conscience" and thus violates the Due Process Clause -- is the express substantive standard that the "cruel, inhuman and degrading" prohibition would instantiate. The Administration would not need to prevent enactment of the prohibition if it did not wish to preserve the authority to engage in conduct that meets this standard.) Is there any really persuasive argument that the CIA should be permitted to avoid such constitutional restrictions merely by the fortuity that it flies these detainees to an undisclosed foreign location rather than to a detention facility in South Carolina?

2. The legal theory that supports the waterboarding of KSM is not limited to top Al Qaeda leaders. It would permit the inhumane treatment outside U.S. jurisdiction of any detainee not protected by the Geneva Conventions -- a category that is, in this Administration's view, remarkably broad, encompassing virtually anyone who is suspected of aiding Al Qaeda in any way. The limitation to "top" Al Qaeda leaders, if it exists, is a function of policy, not of legal constraint (unless I'm missing something).

3. It's somewhat unrealistic to hope that the policy will not as a practical matter have ramifications far beyond the class of persons for whom the policy was designed. The "migration" of such techniques, and their ilk, to interrogations by the Armed Forces, and to detainees who are protected by Geneva or who have much more questionable intelligence value, is very difficult to prevent, particularly where the CIA's harsh methods become widely known and emulated within the broader community of interrogators who are under intense pressure to obtain valuable intelligence (whether about future terror or simply about Iraqi insurgency plans). In addition to the story told in the Fay Report, Andrew Sullivan is especially worth reading on this very serious problem.

4. This is, to my mind, the most important point: Even if we do as a Nation ultimately decide that inhumane treatment should be authorized for a certain category of detainees, perhaps the Times story will at the very least help to ensure that that question is subject to public deliberation, democratic decisionmaking, and the moral and practical (including international) ramifications that such a serious decision ought to entail. This Administration has talked a great deal about how it is committed to treating detainees "humanely," but all the while it has fought tooth and nail to be able to treat detainees inhumanely, i.e., in a manner that would be unconstitutional if done in the U.S. Perhaps it is absolutely right to have worked to preserve such a CIA "loophole." I don't think so; but I recognize that I may be in the minority. I simply hope that, if this--waterboarding--is being done in our name, at least we can be more forthright about what we, and our legal and moral commitments, have become.

UPDATE II: Not so fast. It appears that perhaps I was being far too pessimistic about the willingness of Americans to condemn the CIA's legally approved program of "torture-light" for suspected Al Qaeda operatives. (That is to say, I've undoubtedly been spending too much time in the blogosphere.)

According to this very recent USA Today poll (taken last week), 59% of respondents said that they would not be willing to have the U.S. government torture known terrorists even if those known terrorists “know details about future terrorist attacks in the U.S.” and the government thought such torture was “necessary to combat terrorism”! And when asked whether “you think it is right or wrong for the U.S. government to use [particular techniques] on prisoners suspected of having information about possible terrorist attacks against the United States,” respondents answered as follows:

-- Forcing prisoners to remain naked and chained in uncomfortable positions in cold rooms for several hours – WRONG, 79% to 18%

-- Having female interrogators make physical contact with Muslim men during religious observances that prohibit such contact – WRONG, 85% to 12%

-- Threatening to transfer prisoners to a country known for using torture – WRONG, 62% to 35%

-- Threatening prisoners with dogs – WRONG, 69% to 29%

-- And as for Waterboarding (“Strapping prisoners on boards and forcing their heads underwater until they think they are drowning”) – WRONG 82% to 18%

-- On “[d]epriving prisoners of sleep for several days,” 49% of respondents answered RIGHT; 48% WRONG

Posted 11:45 PM by Marty Lederman [link]