Heather MacDonald's Dubious Counter-"Narrative" on Torture

Marty Lederman

Over in Slate, Mickey Kaus refers to a new article in the City Journal by Heather MacDonald as the “best defense of the administration’s record on torture” that he’s yet read. MacDonald argues that the atrocities at Abu Ghraib and other abuses in U.S. detention facilities in Iraq and Afghanistan (including, apparently, murders) are not the result of Administration interrogation policies; that the Office of Legal Counsel’s legal justifications for extremely coercive interrogation techniques bordering on torture have had no effect on the Pentagon’s interrogation policies; and that the military’s current interrogation practices are, in fact, far too timid and cautious—the result of a hidebound legalist culture within the government and of an inaccurate “torture narrative” promoted by “self-professed guardians of humanitarianism” (e.g., the Red Cross and Amnesty International) who “need to come back to earth.”

MacDonald’s account is, I think, suspiciously evasive on the facts and the law, as I’ll explain below.

At the outset, however, it’s important to note that MacDonald is absolutely correct in one very important respect—involving the role of the CIA. In a series of posts that I published here a few days ago (see below), I attempted to demonstrate that the infamous August 2002 OLC Memo on torture was not originally intended as a guide to interrogations conducted by the U.S. Armed Forces in Iraq, Afghanistan, or Guantanamo. The 2002 memo deals exclusively with the federal torture statute—but the Armed Forces are bound by legal rules much more restrictive than those imposed by the torture statute, including the Uniform Code of Military Justice, the President’s directive that all detainees be treated humanely, and article 16 of the Convention Against Torture, which in effect prohibits treatment that would “shock the conscience,” and thus violate the Due Process Clause, if it had occurred within the U.S. The purpose of the 2002 OLC Torture memo, I explained, was instead to identify the legal limits on interrogation that the CIA may use against suspected Al Qaeda operatives at locations outside U.S. jurisdiction. The Administration apparently has concluded (perhaps not without reason) that numerous other statutory, executive and treaty-based restrictions on coercive interrogation and inhumane treatment do not apply to such CIA interrogations outside U.S. jurisdiction—so that if a technique does not amount to “torture” under the very narrow statutory definition, it is not off-limits to the Agency. In other words, even if a particular inhumane or cruel technique would be unlawful if performed by the military, or would be unconstitutional if performed by the CIA within the U.S., OLC apparently has concluded that the CIA nevertheless may use that technique upon suspected Al Qaeda detainees outside U.S. jurisdiction as long as it does not amount to statutory “torture.”

The 2002 OLC Opinion bent over backward to construe the federal torture statute as narrowly as possible. A recent, superseding OLC memo on the torture statute, released at the end of December 2004, improves on the 2002 memo in numerous ways, and even goes so far as to repudiate many of the central, most extreme conclusions of that earlier memo. Notably, however, the new memo reassures the CIA, in a footnote, that despite all these changes and repudiations, OLC has “reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." That is to say, the new OLC Opinion, even with its much more reasonable views of the torture statute, appears not to affect in any significant way the techniques the CIA has already been specifically authorized to use. And the Administration has concealed from the public (and perhaps also from the Congress) the extreme, sometimes inhumane forms of interrogation—just short of the strict statutory standard of “torture”—that the CIA presumably is authorized to use upon detainees overseas.

In his confirmation hearing last week, Judge Gonzales claimed that he has no “specific recollection” whether it was the CIA that asked for OLC’s legal advice on the meaning of the torture statute. That claim is increasingly implausible. MacDonald’s article and another new piece in Time Magazine confirm what others have been reporting since last summer—namely, that the White House Counsel request for OLC advice was prompted by a CIA request concerning “how far interrogators could go” against high-value Al Qaeda detainees, such as Abu Zubaydah. (I’ve tried to demonstrate in my earlier posts that this is the only way to explain the OLC memos—that there would have been no reason for OLC to be answering the narrow questions concerning the torture statute if the request had come from, e.g., the Pentagon, which was bound by much stricter requirements.)

As the Time Magazine article notes, however, as long as the Administration is not more forthcoming, “it remains impossible to know what rules the CIA is following when it conducts interrogations in ‘undisclosed locations’ outside the U.S.” What we do know is that the Administration appears to have strenuously, and successfully, resisted all efforts—including two recent bills that the Senate passed unanimously—to require the CIA to refrain from cruel, inhuman and degrading treatment of detainees. And, according to “a former Justice Department official” cited in MacDonald’s article, the CIA apparently has been authorized to use techniques as extreme as water-boarding, i.e., submerging a detainee in water to induce the sensation of drowning. Beyond that, as MacDonald notes, “[t]he CIA’s behavior remains a black box.”

In her article, MacDonald agrees that the 2002 OLC Memo was “hair-raising,” and “understandably caused widespread alarm.” She argues, however, that the OLC Memo “had nothing to do” with the interrogation “debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba,” and had no connection to the abuses at Abu Ghraib, or to the extreme methods of military interrogation that have been alleged at Guantanamo and elsewhere. MacDonald further argues that, in contrast to the CIA, Pentagon officials have not come close to violating the law; that the military’s techniques have been “light years from real torture”; that the interrogation policies in Cuba and Afghanistan are “irrelevant” to what happened in Abu Ghraib; and that, in fact, the Armed Forces have been unduly hamstrung by a culture of legalism that is an unfortunate byproduct of “fanatically cautious” Pentagon lawyers steeped in the outmoded ways of the Geneva Conventions.

This version of the story appears to be selective, at best.

As noted above, I agree with MacDonald that the 2002 OLC Memo likely was not intended to affect interrogation policies in the military. But she is wrong to insinuate that the Pentagon was unaware of the OLC Memo, and to argue that the Memo had no effect on Pentagon policies and practices. Although I assume the Memo was originally intended for use by the CIA, the White House soon forwarded it to the Department of Defense, where huge portions of it were incorporated virtually verbatim in the DoD Working Group Report on Guantanamo interrogation techniques in early 2003 (even though the statute discussed in the OLC Memo did not even apply at Guantanamo during the period in question). Most notably, the Pentagon adopted wholesale the most indefensible and most dangerous portions of the OLC Memo—where OLC concocted unlikely criminal defenses of “necessity,” “defense of nation,” and “presidential authority,” and where OLC argued that criminal laws restricting methods of interrogation are unconstitutional to the extent they impinge upon the President’s decisions of “what methods to use to best prevail against the enemy.”

Armed with these OLC assurances of virtually no legal exposure, the DoD Working Group itself concluded that these techniques were among those that are lawful under the restrictive laws governing military interrogations: placing a hood over detainees during questioning; 20-hour interrogations; four days of sleep deprivation; forced nudity to create a “feeling of helplessness and dependence”; increasing “anxiety” through the use of dogs; quick, glancing slaps to the face or stomach; and the threat of transfer to another nation that might subject the detainee to torture or death.

In December 2002, Defense Secretary Rumsfeld likewise approved a whole series of new interrogation techniques that are difficult to explain in terms of the law governing the military. Perhaps because such techniques were so obviously close to or over the legal line, Rumsfeld rescinded that approval after only six weeks. MacDonald is correct that in April 2003, Secretary Rumsfeld declined to approve of some of the more coercive techniques. What’s not as certain is her further argument that the non-conventional “stress” techniques Rumsfeld did finally approve were “innocuous interventions.” Those techniques included “environmental manipulation” (such as “adjusting” the temperature or introducing an “unpleasant smell” in the interrogation area); convincing a detainee that individuals from a country other than the United States are interrogating him (including from a nation that the detainee knows is more likely to engage in harsh treatment); and isolating the detainee from other detainees for up to 30 days.

Presumably each of these techniques is, in Rumsfeld’s view, “humane,” does not shock the conscience, and does not violate the UCMJ (including its prohibitions on cruelty, oppression, maltreatment, assaults and threats).

Perhaps his judgments on those questions are legally sound as an abstract matter—that is to say, perhaps these techniques could be applied in conformity with all applicable laws that apply to the military. But when it comes to how Rumsfeld’s directives were (apparently) implemented, it becomes clear that those directives were hardly “innocuous.” MacDonald asserts that the new techniques Rumsfeld approved were used on only one GTMO detainee. The Schlesinger Report states that the new, more coercive Rumsfeld techniques were used upon two detainees at GTMO. If these accounts are accurate, then perhaps the attempt to trace harsh techniques to Pentagon-approved policies really is a tempest in a teapot (unlike what is happening at the CIA).
But MacDonald’s minimalist account is not consistent with other recent reporting. According to this recent New York Times story, for instance, http://www.nytimes.com/2005/01/01/national/01gitmo.html?oref=login, the Rumsfeld-approved techniques apparently transmogrified in practice into the following at GTMO:

-- prolonged sleep deprivation;

-- shackling prisoners in uncomfortable positions for many hours (to the point where one detainee who had been shackled overnight in a hot cell soiled himself and pulled out tufts of hair in misery);

-- tormenting prisoners by chaining them to a low chair for hours with bright flashing lights in their eyes and audio tapes of Lil' Kim, Rage Against the Machine and Eminem played loudly next to their ears (or in some cases a tape mix of babies crying and the television commercial for Meow Mix in which the jingle consists of repetition of the word "meow");

-- and, in at least one case, tranquilizing a detainee, placing him in sensory deprivation garb with blackened goggles, hustling him aboard a plane that was supposedly taking him to the Middle East, and bringing him (unknowingly) back to GITMO, where he was put in an isolation cell and there subjected to harsh interrogation procedures that he was encouraged to believe were being conducted by Egyptian national security operatives.

Are these techniques “light years from real torture,” as MacDonald suggests? More to the point, are they lawful? To the extent military officers approved or implemented these forms of coercive interrogation, it is difficult to see how they avoided violating legal restrictions such as those in the UCMJ, article 16 of the CAT, and the President’s directive that detainees be treated “humanely.” Notably, MacDonald herself does not explain how these techniques—or even those approved by Rumsfeld—might be consistent with the law. Indeed, she fails even to mention the UCMJ, even though, as Senator Graham indicated last week, it is the longstanding set of legal norms that establishes the most comprehensive and demanding set of restrictions on the conduct of military personnel engaged in interrogation. To my knowledge, DoD has never hinted that the UCMJ is inapplicable at Guantanamo, and has not asked Congress to loosen UCMJ standards so that the military may apply previously unlawful forms of coercion to Al Qaeda detainees. Is MacDonald asking for a legislative authorization that even the Administration has been unwilling to propose? There's no way to know, because her piece blithely disregards any discussion of what the current law might actually be.

Finally, there’s MacDonald’s eye-opening suggestion that the interrogation policy debates at GTMO and in Afghanistan are “irrelevant” to what occurred at Abu Ghraib, and that Abu Ghraib had little or nothing to do with the Administration’s interrogation policies (or with interrogation at all). The best that can be said for this argument is that perhaps MacDonald simply has not read the Schlesinger, Jones and Fay Reports, because chapter and verse of those reports undermine her account.

The reports explain in detail that the interrogators at Guantanamo, and the conflicting and confusing set of directives from the Pentagon for GTMO, “circulated” freely to Afghanistan and then to Iraq (Schlesinger 9). Lieutenant General Sanchez, the commander of the Combined Joint Task Force in Iraq, approved techniques going beyond those approved for GTMO, “using reasoning” from the President’s February 7, 2002 directive on unlawful combatants (id. at 10). The “existence of confusing and inconsistent interrogation technique policies,” including a “proliferation of guidance and information from other theatres of operation,” and the fact that personnel involved in interrogation in GTMO and Afghanistan “were called upon to establish and conduct interrogation operations in Abu Ghraib,” all contributed “to the belief that additional interrogation techniques were condoned in order to gain intelligence” (Jones 15-16; Fay 8, 10, 22). “The lines of authority and the prior legal opinions blurred” (Fay 10), and “DoD’s development of multiple policies on interrogation operations for use in different theatres or operations confused Army and civilian Interrogators at Abu Ghraib” (Fay Finding No. 7).

Most importantly for present purposes, the Fay Report demonstrates that the extreme techniques that have been approved for the CIA, based upon OLC legal advice, have had an inevitable deleterious impact on the interrogation methods employed by the military (including at Abu Ghraib), even though the military is in theory subject to much more restrictive legal rules, such as the UCMJ. “CIA detention and interrogation practices [in Iraq] led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib” (pp. 52-53). The CIA practices and techniques led to a “perception” that such techniques and practices “were suitable and authorized for DoD operations” (pp. 118-119).

MacDonald would have us believe that the now-familiar story of the inevitable “migration” of extreme practices from the CIA and from GTMO to our troops in Asia is a myth. Notably, however, she provides no evidence to contradict the accounts in the Schlesinger, Jones and Fay Reports, which demonstrate that such migration was all-too-real. "[T]he events at Abu Ghraib cannot be understood in a vacuum" (Jones/Fay Executive Summary).

Finally, it is worth noting MacDonald’s principal prescription, which is that we ought to eliminate transparency in the law of interrogation: If U.S.-approved techniques are publicly known, she reasons, “interrogators have lost the ability to create the uncertainty vital to getting terrorist information.” The problem, writes MacDonald, is that we have reassured the world of “our limits,” whereas interrogations would be much more effective if detainees thought we were a lawless state, willing to do just about anything to get information (sort of like Jack Bauer on “24”)-- or, at the very least, if detainees had no idea what our interrogators' limits are. This is very much of a piece with the Government’s chilling (but refreshingly candid) argument in Padilla that it was necessary to deny the defendant access to counsel in order to convince Padilla that he was completely outside the protection of the judicial system—that no process was due and that all hope was lost—in order to establish what the Government euphemistically called the “delicate” relationship of “trust” and “dependency” between detainee and interrogator.

As an empirical matter, of course, MacDonald may well be correct: If someone is being interrogated by a nation with secret laws, by a nation that refuses to assure the world that it will abide by its treaty obligations, by a nation with a system of interrogation rules and practices wholly outside the purview of democratic deliberation, public accountability and judicial review, no doubt such an interrogation would be more effective than one that is bound by acknowledged legal limits. Which just goes to show that what MacDonald is really complaining about is that we must, even in interrogation, adhere to the rule of law—an understandable concern in an essay that does not even bother to discuss what the law of interrogation actually is.

Posted 1:47 PM by Marty Lederman [link]