an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Jane Mayer on the Black Sites -- If You Read Only One Thing . . .
In this week's New Yorker, here's Jane Mayer's indispensable story on the CIA black sites and the unlawful torture and cruel treatment that has occurred there. This is the single best, and most important, article yet written on the torture scandal.
As we have tried to argue repeatedly in this space, it is the conduct at these black sites, and not so much Abu Ghraib and Guantanamo, that is at the heart of the scandal -- or, at the very least, it's at the CIA black sites that the problems began, and that's where the primary action is now, after Hamdan and the MCA. This is not a case, like Abu Ghraib and Guantanamo, where the government simply insisted that interrogators obtain actionable intelligence, promised them legal cover, and then turned a blind eye so that unsupervised thugs could do their dirty work. That was bad enough. But as Jane explains, the CIA program is much more systematized, approved in every detail at the highest levels of government, by DOJ and by the Director of Central Intelligence, instigated and pushed by the Vice President, and supervised by psychologists hired to give it a patina of respectability and orderliness. It is an official, systematic torture regime, conducted entirely in secret, and without any accountability, let alone punishment for those who have violated clear legal norms -- including the Torture Act, the War Crimes Act, and the prohibition on cruel treatment and torture in Common Article 3 of the Geneva Conventions.
There are so many rich and remarkable details in Jane’s piece; no summary can do it justice. But here are some of the more important points:
-- In 2001, the CIA had no idea how to effectively interrogate suspects. Dentenion and interrogation were not traditional CIA functions, and so the agency solicited advice from, among others, . . . Egypt, Jordan, and Saudi Arabia, nations notorious for torture. There was substantial internal resistance in the CIA to this fundamental change in the agency's agenda -- and to implementing a system of detention and coercive interrogation without having any experience in such matters.
-- "The C.I.A.’s interrogation program is remarkable for its mechanistic aura. 'It’s one of the most sophisticated, refined programs of torture ever,' an outside expert familiar with the protocol said. 'At every stage, there was a rigid attention to detail. Procedure was adhered to almost to the letter. There was top-down quality control, and such a set routine that you get to the point where you know what each detainee is going to say, because you’ve heard it before. It was almost automated. People were utterly dehumanized. People fell apart. It was the intentional and systematic infliction of great suffering masquerading as a legal process. It is just chilling.'"
-- Jane relates that a secret Red Cross report "describe[s] the agency’s detention and interrogation methods as tantamount to torture, and declare[s] that American officials responsible for the abusive treatment could have committed serious crimes."
-- I have repeatedly argued here that there is no justification for keeping secret what interrogation techniques the CIA is permitted to use. In particular, it is absurd to "classify" something that is revealed to people outside the government who have no duty of confidentiality, i.e., to the detainees on whom the techniques are used. Those persons are free to disclose the information to others, as they have now done to Red Cross interviewers. Because of this, it becomes necessary to detain these persons, in isolation, presumably forever, in order to impose a prior restraint on their speech concerning their knowledge of what our government has done to them. In a strange sort of circular logic, the interrogation becomes the justification for indefinite detention, even long after the interrogation ends. Thus, as Jane writes, "[t]he utter isolation of these detainees has been described as essential to America’s national security," so that they cannot reveal what happened to them.
And what does our formal torture regime consist of?
-- "A former member of a C.I.A. transport team has described the 'takeout' of prisoners as a carefully choreographed twenty-minute routine, during which a suspect was hog-tied, stripped naked, photographed, hooded, sedated with anal suppositories, placed in diapers, and transported by plane to a secret location. A person involved in the Council of Europe inquiry, referring to cavity searches and the frequent use of suppositories during the takeout of detainees, likened the treatment to 'sodomy.' He said, 'It was used to absolutely strip the detainee of any dignity. It breaks down someone’s sense of impenetrability. The interrogation became a process not just of getting information but of utterly subordinating the detainee through humiliation.' The former C.I.A. officer confirmed that the agency frequently photographed the prisoners naked, 'because it’s demoralizing."
-- The interrogation techniques themselves -- many or most of which are presumably still approved under the President's new Executive Order -- have included:
extreme sensory deprivation;
various "stress positions," such as being kept for a prolonged period in a cage, known as a "dog box," which was so small that the detainee could not stand, and being suspended from the ceiling by one's arms, the toes barely touching the ground, until the pressure on the wrists becomes exceedingly painful and the legs begin to swell painfully;
enforced, prolonged nakedness; and
hypothermia and hyperthermia.
All of these are designed either to cause extreme physical pain and suffering or, at the very least, to destroy one's sense of self and place. The aim, in short, is to reduce the detainees to a state of "learned helplessness," which "creates dread and dependency." This is not a secret -- the Administration has publicly relied on such a theory of using indefinite and secret detention and coercive techniques in order to establish a relationship of ""trust and dependency in pleading with the courts not to oversee detentions.
-- The secret Red Cross report "emphasizes that it was the simultaneous use of several techniques for extended periods that made the treatment 'especially abusive.'"
-- In light of all this, it is not hard to see why that Red Cross report "describe[s] the agency’s detention and interrogation methods as tantamount to torture, and declare[s] that American officials responsible for the abusive treatment could have committed serious crimes."
-- Indeed, perhaps the most remarkable thing (the most distressing, anyway) is that so many lawyers, and doctors, and psychologists, signed off on this program as lawful and ethical.
There will, I'm certain, be many who read Jane's article and cheer -- they'll conclude, correctly, that most or all of these high-level detainees are evil criminals, monsters who don't deserve anything better than this sort of cruel treatment. I don't agree, obviously, that it's right to use these techniques, even on the worst of the worst. But I understand the terms of that debate. That is a debate, in effect, about whether torture and cruel treatment should ever be lawful and, if so, against whom and under what circumstances. About whether the United States should, among other things, choose to engage in grave breaches of our treaty obligations.
But whatever the results of such a debate would or should be, it remains the case that under current law, torture and cruel treatment are categorically prohibited.
And yet the lawyers and doctors nevertheless approved the techniques that Jane describes. Think about what it would take for the Administration lawyers to have been correct here: It would mean, at a minimum, that such a regime of physical and psychological abuse, of intentional terrorizing of detainees so as to break their bodies and their wills, does not violate the following, at a minimum:
The Torture Act, and the treaty obligation that it is designed to enforce, the categorical prohibition against torture in the Convention Against Torture.
The McCain Amendment prohibition on cruel, inhuman, and degrading treatment.
The same prohibition of such CID treatment in the Convention Against Torture.
The prohibition on cruel treatment and torture in Common Article 3 of Geneva.
The federal assault statute.
The categorical, customary international norm, enforceable under the Alien Tort Statute, against torture.
The Due Process Clause prohibition on conduct that "shocks the conscience," such as "torture and its equivalents."
The President's own directive that all detainees be treated "humanely."
(For more on some of these legal restrictions, see here and here.)
Is it really plausible to think that those who negotiated, voted for, signed, and ratified those legal norms intended to allow the sort of program that Jane Mayer's article so graphically describes? And if the answer to that question is no -- as I think it plainly is -- how is it possible that so many lawyers, doctors, psychologists, and public officials at the highest levels, concluded otherwise?
And it's not only the Executive branch and its enablers that are to blame -- there has been a deafening silence from the legislature, too, where there ought to be a thorough and public airing of what we have done and how it can be prevented in the future (or legalized, as the case may be). Let's put it this way (as suggested by Senator Durbin a couple of weeks ago): If the sort of secret detention, abuse and interrogation system that Jane describes were employed by one of our enemies against our nonuniformed personnel (intelligence operatives, private contractors, special forces, etc.), every single member of Congress would publicly scream that the enemy had engaged in unlawful torture and cruel treatment. And they would be absolutely correct. (I was going to say that the Executive branch response would be the same -- but we already know that the Attorney General's reaction would be: "[I]t would depend on circumstances, quite frankly.")