Balkinization  

Thursday, June 07, 2007

Extreme Sensory Deprivation

Marty Lederman

It's the one "extreme" CIA interrogation technique that is almost certain to survive Hamdan and President's forthcoming executive order. It was a common tool of the agency well before September 11th -- a centerpiece of the notorious KUBARK manual -- and a recent No. 3 official at the CIA says "I'd be surprised if [sensory deprivation] came out of the toolbox." So reports Mark Benjamin in an important article in Salon.

Is it legal? "Sensory deprivation techniques taken to extremes would clearly violate the Geneva Conventions, according to international law experts," reports Benjamin.

That would certainly appear to be correct, on a quick take. Common Article 3 prohibits all "cruel treatment," and by anyone's standard, the sensory deprivation Benjamin describes would seem to be the epitome of cruel -- indeed, cruelty appears to be at its core. Indeed, it would seem to be designed to result in severe (i.e., prolonged) mental suffering, as well -- in which case it would be a crime under the Torture Act.

This is such a common technique of historical torture regimes and modern intelligence agencies -- surely there must be at least a smidgen of law on it. Does anyone know of any cases discussing whether and under what circumstances sensory deprivation is "cruel treatment" under CA3? Torture? How about conduct that "shocks the conscience" under the Due Process Clause, which is the standard of the prohibition in the McCain Amendment?

Comments:

In Westefer v. Snyder, 422 F. 3d 570, 589-90 (7th Cir. 2005), the Seventh Circuit held that sensory deprivation allegations were sufficient to defeat a motion to dismiss on a due process/liberty interest claim.
 

Alfred McCoy's A Question of Torture includes accounts of 1960s-era experiments on college students by researchers on the CIA grant list.

Extreme sensory deprivation produces psychotic symptoms in as little as 24 hours, a few days longer for some. It effects the disintegration of personality that the CIA considered was the key to Soviet "brainwashing" of show-trial victims.

(I see the McCoy is in paperback -- I recommend it.)
 

Oh, okay, if you actually suffer through the Salon ad, they quote McCoy. Small world. Anyway, read his book. (And see the Amazon comments thereon, where one of Milgram's assistants disputes McCoy's speculations on Milgram's having been funded by the Office of Naval Research.)
 

Does anyone know of any cases discussing whether and under what circumstances sensory deprivation is "cruel treatment" under CA3?

Ireland v. United Kingdom, 25 Eur. Ct. H.R. (1978) might have some details, based on this quote included in the CRS report on the applicability of the GC to interrogation techniques:

The ECHR held that “use of [sensory deprivation] did not constitute a practice of
torture within the meaning of Article 3 [of the European Convention for the
Protection of Human Rights and Fundamental Freedoms],” but did constitute
“inhuman and degrading treatment.”


That article is fairly simple in language: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

In Hill v. Pugh, often cited in the administration's Gitmo-related briefs, Hill's request for movement to new locations because of the cruelty of his confinement (which involved sensory deprivation) was not perceivable in "the history of [his] mental health diagnoses and the frequency of his contacts with the mental health staff."

The administration says this shows that sensory deprivation
"did not implicate due process rights under the Fifth Amendment or constitute
cruel and unusual punishment under the Eighth Amendment where prisoner’s minimal physical
requirements for food, shelter, clothing, and warmth were satisfied."


However, this finding seems only to be based on Hill's particular situation and failure to demonstrate damage, rather than a statement about the practice in general.
 

movement to new locations because of

That should read movement to new locations was denied because.
 

In Hill v. Pugh, often cited in the administration's Gitmo-related briefs, Hill's request for movement to new locations because of the cruelty of his confinement (which involved sensory deprivation) was not perceivable in "the history of [his] mental health diagnoses and the frequency of his contacts with the mental health staff."

The administration says this shows that sensory deprivation
"did not implicate due process rights under the Fifth Amendment or constitute
cruel and unusual punishment under the Eighth Amendment where prisoner’s minimal physical
requirements for food, shelter, clothing, and warmth were satisfied."

However, this finding seems only to be based on Hill's particular situation and failure to demonstrate damage, rather than a statement about the practice in general.

# posted by PMS_Chicago : 12:24 PM

Were those "mental health staff" the psychiatrists and psychologists who work with interrogators in Gitmo despite the hypocratic oath and other ethical requirements which summ up in the principle, "Do no harm"?

Why not just have Bill Frist diagnose the mental health of such detainees via videotape? He's not qualified to do so; but those who work for Bushit in implementing and advancing his war crimes aren't exactly credible.

Any more than are Bushit's rulings upon the right or wrong of his war crimes.
 

You do not need an opinion written by a lawyer in a black robe to know that sensory deprivation is the polar opposite or torture.

The definition of torture is the intentional infliction of severe pain.

Pain is a sensation.

How then can sensory deprivation be the infliction of any level of pain, nevertheless the severe pain of torture?

Whether sensory deprivation constitutes "cruel treatment" is a completely subjective call because "cruel treatment" has no objective definition.

Given that people voluntarily undergo sensory deprivation to alter and enhance their consciousnesses, I am unsure how sensory deprivation can be considered "cruel" unless you claim that those who voluntarily engage in this are sadomasochists.

The object of sensory deprivation in interrogation is to disorient the subject, not to discomfit him.
 

"You do not need an opinion written by a lawyer in a black robe to know that sensory deprivation is the polar opposite or torture."

As a matter of law we do when those who bring the issue are those who deny other's reaslity as being valid.

Nor is it the polar opposite of torture. That polar opposite would be to give a target of the torture millions of dollars, gratis, and a life of luxury.

"The definition of torture is the intentional infliction of severe pain.

"Pain is a sensation.

"How then can sensory deprivation be the infliction of any level of pain, nevertheless the severe pain of torture?"

You could learn that by reading up on the issue. But in view of the fact that you only believe true that you want to believe true -- evidence either way being irrelevant to you -- you probably wouldn't beleive that unless you yourself were subjected to it.

"Whether sensory deprivation constitutes "cruel treatment" is a completely subjective call because "cruel treatment" has no objective definition."

If that is true, then you cannot declare it as being true.

"Given that people voluntarily undergo sensory deprivation to alter and enhance their consciousnesses, I am unsure how sensory deprivation can be considered "cruel" unless you claim that those who voluntarily engage in this are sadomasochists."

We aren't talking about the voluntary undergoing here, are we? No, we are not. Why not attempt to change the subject by talking about something else entirely irrelevant -- say, whale hunting.

As for the voluntary undergoing: the conditions are decidedly different than those imposed upon the unwilling. We know that sensory deprivation, even when the subjects are volunteers, can result in psychosis in the subject, as it has been discovered and substantiated in controlled experiments.

"The object of sensory deprivation in interrogation is to disorient the subject, not to discomfit him."

And you consider being "disorient"ed to be other than discomfiting? Being disoriented can result at a minimum in upset stomach and vomiting. Is vomiting pleasant, or discomfiting?

"# posted by Bart DePalma : 11:03"

When is this pollution going to be banned?
AM

I'd ask that you think, but you'd claim you haven't a passport to that foreign destination.

If "cruel treatment is subjective, then you cannot claim your excuses for it are valid. Correct?

We tend to accept other's statements about their subjective experiences over our assessments of them because they, unlike us, have first hand experience of them. Unless, of course, we are bullying imperialists, in which case we will impose our will onto the other, and attempt to discredit their views of their subjective realities.
 

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