CIA "Enhanced Interrogation Techniques" Revealed

Marty Lederman

On Friday, ABC News broke a very important story; and yet it seems that no one has noticed (or perhaps no one cares).

"Former and current intelligence officers and supervisors" described for ABC News six specific "enhanced interrogation techniques" that the CIA has approved for a dozen or so high-level Al Qaeda detainees incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe:

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.

2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.

3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the
treatment to a halt.

This story is notable for several reasons:

1. Confrmation that use of these techniques is formally approved at the highest level of the CIA: "According to the sources, when an interrogator wishes to use a particular technique on a prisoner, the policy at the CIA is that each step of the interrogation process must be signed off at the highest level -- by the deputy director for operations for the CIA."

2. The fact that several former and current CIA officers and supervisors are leaking CIA "methods" is newsworthy in and of itself. There's a very strong taboo against revelation of sources and methods within the CIA; such conduct could subject the leakers to severe discipline and even criminal exposure. Therefore it's virtually unheard of. These leaks -- together with recent leaks concerning the CIA's "black sites" where these interrogations occur, and about a CIA Inspector General report questioning the legality of these techniques -- indicate that there must be profound dissent within the agency on this issue, including on the question of the efficacy of such techniques: "[T]he debate among intelligence officers as to whether they are effective should not be underestimated." According to ABC News, the leakers "say they are revealing specific details of the techniques, and their impact on confessions, because the public needs to know the direction their agency has chosen."

3. The techniques were first approved in March 2002, at least four months before the infamous OLC "Torture Memo." This suggests that the CIA was willing to engage in such conduct before OLC signed off on it (in writing, anyway), and that OLC's advice was offered with respect to ongoing conduct. The general practice within OLC is not to opine on the legality of past or ongoing conduct within the Executive branch, because in such a case there could be an understandable inclination to skew advice so as not to conclude that Executive officials had been acting unlawfully. On the other hand, the Executive branch obviously needs to know if it has been acting unlawfully so that it can conform its practice to the law. Therefore it's often a tough call within OLC whether to give advice in situations such as this.

4. These techniques -- especially Nos. 4 through 6 -- would very likely be deemed conduct that "shocks the conscience," and that therefore would be forbidden by the McCain Amendment. (The CIA's own Inspector General apparently concluded that some of the techniques do shock the conscience.) I should caution, however, that there is no judicial precedent for applying the "shocks the conscience" standard in the context of interrogations of high-level international terrorism suspects, and therefore there is no way to know for certain whether the McCain Amendment would prohibit even such harsh techniques.

* * * *

I'm not going to discuss here whether these techniques are moral, or "effective," or worth the costs, or whether it was inevitable that they would "migrate" to less carefully monitored settings (e.g., Iraq), or whether they contributed to the confusion throughout the military about legal standards governing detainee treatment. Those important discussions are ongoing elsewhere (such as at Crooked Timber, on Andrew Sullivan's site, and in the comments to this Orin Kerr post), and I don't have any particular expertise to offer on such topics.

No one is discussing this question, however: Are such techniques currently legal?

In a series of posts here, I've tried to explain why the Administration concuded that the CIA, when acting against alien detainees overseas, is not bound by a whole host of legal restrictions, including (but not limited to) the Due Process Clause, the Geneva Conventions, Common Article 3 of the Geneva Conventions, customary laws of armed conflict, Article 16 of the Convention Against Torture, the Uniform Code of Military Justice, and the President's directive that detainees be treated "humanely."

For now, however, I'd like to focus only on the question whether these techniques are federal crimes under two statutes: The federal anti-torture law (18 U.S.C. 2340A), and the federal assault statute (18 U.S.C. 113).

Torture

If our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such techniques (especially Nos. 4-6) are impermissible forms of torture. Indeed, waterboarding and "cold cell" have often been used by repressive regimes, and have historically been thought of as standard forms of torture. And yet the CIA and OLC have concluded that they are not "torture" -- and, as I explained at the end of this post, OLC stuck to this conclusion even after it had, in December 2004, rejected all of the unconvincing statutory analysis of the August 2002 Torture Memo.

How could OLC possibly have concluded that waterboarding and "cold cell" are not necessarily torture? Well, we won't know for certain unless and until we see OLC's specific legal analysis. But surely, a large part of the explanation must be that the Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture as a condition of its ratification of that treaty -- restrictive terms that Congress itself adopted in the torture statute.

The criminal statute defines torture as an act "committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control"; and the statute in turn defines "severe mental pain or suffering" to require "prolonged mental harm."

I suppose the OLC theory must have been that although these techniques obviously inflict severe discomfort, severe agony, and, in the case of waterboarding, severe terror ("Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."), they do not necessarily inflict severe physical pain or suffering -- at least when applied under certain conditions and with certain "protections" (about which we still lack information). What about severe mental suffering? Perhaps OLC concluded that the mental pain is intermittant and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes, and is not intended to result in any lasting mental suffering.

Without seeing OLC's analysis, it's very hard to determine whether these legal conclusions were reasonable. I do think it's safe to say, however, that the conclusions are counterintuitive. If, for instance, one had asked the President and the 500+ representatives who voted for the torture statute whether waterboarding and "cold cell" and "Long Time Standing" constituted "torture" as they understood it, they all would have said "yes." And to the extent these techniques really aren't "torture" because of technical lacunae in the statute, perhaps that's a sign that Congress should consider amending its definitions.

At the very least, we can now understand that when the President indignantly repeats that "we do not torture under any circumstances," such an assertion of grand principle comes with an important footnote: "The following do not constitute 'torture': Being forced to stand, handcuffed and with one's feet shackled to an eye bolt in the floor, for more than 40 hours; being doused with cold water while standing naked in a 50-degree cell; and being bound to an inclined board, with one's feet raised and head slightly below the feet, and cellophane wrapped over one's face while water is poured over you, inducing a terrifying fear of drowning."

Assault.

Under 18 U.S.C. 113, simple assaults, or assaults by striking or beating, are misdemeanors if they occur "within the special maritime and territorial jurisdiction of the United States." The Administration concedes that this prohibition restricts our interrogations of detainees held "within the special maritime and territorial jurisdiction of the United States." Therefore, it plainly would make unlawful most or all of the six "enhanced" CIA techniques if they occur within the special maritime and territorial jurisdiction of the United States (SMTJ).

In late 2001, the PATRIOT Act amended the SMTJ statute (18 U.S.C. 7) so that the definition of SMTJ now includes "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership."

According to the ABC News story, the locations at which the enhanced techniques occur "often . . . consist of a secure building on an existing or former military base." Regardless of current ownership, those buildings obviously are being "used for purposes of [the CIA]," and therefore would appear to be within the SMTJ, which would make the CIA's techniques there unlawful.

OLC must have concluded that these facilities are not within the SMTJ; but I have to confess that I have not yet figured out the basis on which the office might have reached such a conclusion, in light of the broad language of the statute.
Posted 10:17 AM by Marty Lederman [link]