Understanding the OLC Torture Memos (Coda)

Marty Lederman

Of course, even if CIA conduct outside U.S. jurisdiction is the not-so-secret subtext of the OLC Opinions, the current scandal concerning torture and inhumane treatment is hardly limited to the CIA. For, even in contexts where the President’s directive of “humane” treatment, and the prohibition on cruel, inhuman and degrading treatment, indisputably do apply, the Department of Defense appears to have a fairly unorthodox understanding of what it means to act "humanely" and to refrain from conduct that shocks the conscience.

Whatever the law might be with respect to the CIA, it is not disputed that the Armed Forces at GTMO, and in Iraq and Afghanistan, are subject to the President's directive of "humane treatment," are required to abide by the article 16 prohibition on cruel, inhuman and degrading treatment (because they are acting within U.S. jurisdiction), and are subject to the prohibitions of the UCMJ against cruelty, oppression or maltreatment of prisoners, assaulting prisoners, and communicating a threat to wrongfully injure a detainee. The Pentagon, in its Working Group Report, agrees that these restrictions apply.

And yet, according to several accounts, such as Neil Lewis’s story in the New York Times this past weekend, techniques that apparently have been approved at GTMO include:

-- 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 GTMO, 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.

Similarly, in its Report the DOD Working Group apparently concluded that the following techniques were “humane” and consistent with the UCMJ, the “shocks the conscience” standard, and other legal norms: 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. (It is not clear whether the Pentagon has ever formally approved these techniques, nor how often, if at all, military interrogators have used them.)

There are extremely strong arguments that if they approved or used certain of these techniques, military officials and other personnel have violated the law—including the UCMJ, article 16 of the CAT, the Geneva Conventions (as to detainees protected by those treaties), and the President’s directive that detainees be treated “humanely”—wholly apart from the torture statute that the OLC Opinions discuss. (Indeed, from the time of the 2001 enactment of the USA PATRIOT ACT until the enactment of the 2005 Defense Authorization Act this past October 28th, the torture statute itself did not even apply to GTMO because of a technical jurisdictional provision.)

And, in any event, if those recent accounts are correct about what the Pentagon has actually approved and implemented at Guantanamo, then the President’s assurance that all Armed Forces detainees be treated “humanely,” and that the military does not engage in cruel, inhuman and degrading treatment, ring hollow.

It is a very salutary development that OLC has finally construed the torture statute with the care and judgment that typically characterizes OLC’s best work, and that the Administration has reiterated the Nation’s commitment that torture is never legal, not even for “a good reason.” But that is only half the story. The other half remains untold. We are yet to have an informed public debate about what forms of conduct OLC has sanctioned as lawful, about what forms of interrogation and coercion this nation does permit, and about what is, in fact, being done in our name. If we are to have such a debate, the Administration would have to be much more forthcoming with explanations of which ostensibly “humane” treatments have been approved for military interrogators at Guantanamo and elsewhere, and would have to provide some information concerning the forms of inhumane treatment the CIA has been authorized to use (subject, of course, to redaction where there are legitimate and compelling needs for classification).

If we begin such a debate, here's one modest question to consider: Would it be too much to ask that Congress approve—and the President sign—a statute that would unambiguously prohibit all U.S. personnel, everywhere in the world, from engaging in cruel, inhuman, and degrading treatment—including, at a minimum, conduct that would shock the conscience, and thus violate the Due Process Clause, if it occurred within the U.S.?

P.S. In this series of posts, I may very well have misread the law in certain respects, or failed to properly understand some of the minutiae of the complex legal framework. I would very much welcome any corrections, additions or other editorial suggestions -- thanks.

Posted 9:00 AM by Marty Lederman [link]