Defining "Humanely" Down, Part II

Marty Lederman

On February 7, 2002, the President issued a directive requiring the Armed Forces to treat al Qaeda and Taliban detainees "humanely." In several previous posts here (including this one and the posts linked therein), I've noted that this directive does not apply to the CIA, and that therefore the CIA almost certainly has been authorized to engage in conduct against detainees that is not, on anyone's view, "humane."

But that still does not explain what we know about the Pentagon's interrogation techniques. In particular, I've previously questioned how it could be that Secretary Rumsfeld, General Counsel Haynes, and other high-ranking DoD officials could have determined -- as they did -- that interrogation techniques such as waterboarding, forced nudity, threatening the death of family members, use of dogs to induce stress, etc., could possibly be lawful in light of various legal constraints that in theory apply to the military, including most importantly the Uniform Code of Military Justice and the President's February 2002 "treated humanely" directive.

In an earlier post, I noted Judge (now AG) Gonzales's written testimony (see the answer to Question 15) that "the term 'humanely' has no precise legal definition," but that, "[a]s a policy matter, I would define humane treatment as a basic level of decent treatment that includes such things as food, shelter, clothing and medical care. I understand that the United States is providing this level of treatment for all detainees." As I understood this testimony, Judge Gonzales was suggesting that by requiring the Armed Forces to provide "humane" treatment at a minimum, the President merely meant that detainees must be afforded "decent treatment that includes such things as food, shelter, clothing and medical care" -- but beyond that, apparently they can be waterboarded, they can be threatened with the death of their loved ones, dogs can be used to prey on their fears -- and even the clothing that is otherwise part of the basic "decent treatment" can be stripped from them for certain periods -- all without implicating the presidential directive.

Today we learn much more about what the Department of Defense means when it boasts of its commitment to "humane" treatment of detainees at Guantanamo.

This week's Time Magazine contains a detailed report on the official, classified Pentagon log from the interrogation of GTMO detainee Mohammed al-Qahtani, who the Pentagon suspected of being the twentieth September 11th hijacker.

In response to the Time report, the Pentagon yesterday issued a press release. That release is very revealing in several respects. For instance, the principal justification the Pentagon now offers for its coercive interrogation of al-Qahtani is that it "enabled the Department of Defense to gain a clear picture of Kahtani's strong connection to al-Qaida leadership to include Osama Bin Laden." In other words, the most important information that was squeezed out of al-Qahtani appears to have been that he was, in fact, who we thought he was when we detained him. That is to say, the interrogation proved that the detention (and the ensuing interrogation itself) was justified. Buried further down in the press release are suggestions that even more valuable information was obtained, but virtually all of it involves past conduct. The press release asserts that al-Qahtani "was believed to possess information essential to preventing future terrorist attacks." Did the weeks of interrogation provide any such "essential" information? Not by the looks of it. (DoD asserts that the detainee "[p]rovided infiltration routes and methods used by al-Qaida to cross borders undetected." That would appear from the face of it to be fairly valuable information. But it's still a far cry from information "essential to preventing" future planned attacks. Moreover, it's curious that the press release doesn't really make much of this assertion -- is there less there than meets the eye?)

But be that as it may, I'm willing to assume, at least for present purposes, that the al-Qahtani interrogation did produce some valuable information. My principal interest is the Pentagon's explanation of why this interrogation was lawful.

"The Department of Defense remains committed," claims the press release, "to the unequivocal standard of humane treatment for all detainees, and Kahtani's interrogation plan was guided by that strict standard."

And of what does this "unequivocal" humane-treatment standard consist? According to the Time magazine account, the Pentagon log reveals that:

-- al-Qahtani was subjected to 20 hours of interrogation at a stretch;

-- He was given three-and-a-half bags of IV fluid and then refused permission to urinate, until he wet his pants -- and the log reports that 30 minutes later "[h]e is beginning to understand the futility of his situation."

-- His interrogators prohibited al-Qahtani from praying during Ramadan unless he disregarded his religious obligation not to drink water.

-- In a game called "Drink Water or Wear It," the interrogators poured bottles of water on al-Qahtani's head when he refused to drink.

-- His head and beard were shaved.

-- He was subjected to a drill euphemistically known as "Invasion of Space by a Female."

-- Dogs were brought into the interrogation room, and, according to FBI reports, were used "in an aggressive manner to intimidate the detainee."

-- al-Qahtani was made to stand nude, bark like a dog and growl at pictures of terrorists.

-- His interrogators hung pictures of scantily clad women around his neck.

-- According to an FBI agent's report, al-Qahtani was "subjected to indecent isolation for over three months," until he evidenced behavior "consistent with extreme psychological trauma (talking to non-existent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end)."

* * * *

No doubt there are those who will argue that these techniques were appropriate in light of who we suspected the detainee was, notwithstanding the apparent lack of any concrete or specific reason to think that the detainee would be able to provide information to thwart future attacks. And I'm willing to indulge the assumption here that perhaps a compelling argument can be made that such techniques ought to be available in such circumstances -- perhaps even that Congress could be persuaded to authorize such techniques.

But be that as it may, no such authorization has yet been provided. And I think one thing about this account should be fairly noncontroversial, and uncontroverted -- namely, that the techniques to which al-Qahtani was subjected were a far cry from "humane" treatment, under any colloquial, or even any idiosyncratic, sense of that term. If this is what the Pentagon understands the President's directive to allow, then that "humane treatment" requirement is worthless, a sham.

Moreover, and wholly apart from the President's February 2002 directive, there remains no explanation of how conduct such as that described in the Pentagon's al-Qahtani log could possibly comply with the UCMJ, a statute that happens to be the supreme law of the land. It is becoming increasingly evident that the Pentagon for some reason felt free simply to ignore the UCMJ. Perhaps the explanation lies in the view of the Department of Justice that the President has the absolute power, pursuant to his Commander-in-Chief power, to determine Â?what methods to use to best prevail against the enemy,Â? notwithstanding any statutory restrictions on interrogation techniques. (I'll try to say more about the UCMJ in a future post.)
Posted 7:27 PM by Marty Lederman [link]