Balkinization  

Friday, April 17, 2009

A History of Coercive Interrogation

Guest Blogger

Will Levi

This week the Justice Department released four additional legal memoranda from the previous administration that evaluated the legality of coercive interrogation methods. The memoranda provide new and detailed information about specific techniques. (You will likely not have heard previously about the questioning technique called “insects placed in a confinement box.”) Most readers will conclude that the use of coercive interrogation techniques, and the legal and policy decisions that authorized them, are unprecedented, that they represent a dramatic repudiation of American traditions. The widespread assumption is that the Bush administration was the first administration to authorize coercive interrogation. This may be comforting. It may also be encouraging: the sometimes tendentious and careless nature of the administration’s legal work may lead us to believe that, for coercive interrogation to be determined lawful, existing law had to be eviscerated through shoddy craftsmanship and sweeping assertions of executive prerogative. It would also be quite wrong.

As I describe in a forthcoming edition of the Yale Law Journal, in times of national insecurity since World War II, both Democratic and Republican administrations have interpreted the law to permit the authorization of highly coercive interrogation methods. The United States consistently professed high ideals about its interrogation policies but also authorized aggressive interrogation policies when the security threat seemed to warrant them. With few exceptions, the interrogation methods authorized after 9/11 were authorized at times before. Until 1973, military interrogation policy authorized the use of sleep deprivation, stress positions, harsh and abusive language, and threats of violence as interrogation techniques for protected prisoners of war. CIA techniques authorized at times before 9/11 included sleep and sensory deprivation, self-inflicted pain, and some physical duress. Both the military and the CIA authorized the use of drugs as interrogation aids during the 1950s and 1960s. (In 1958 the CIA made efforts to proscribe the use of drugs “where it may reasonably be expected to cause the subject lasting mental or physical harm as contrasted to possible temporary discomfort,” and allowed the use of drugs only after certification that their use was “in the national interest.”)

Total bans on vaguely defined abuse have provided the latitude that has, in turn, permitted the authorization of coercive interrogation at points since World War II. To say that the law’s requirements were clear prior to 9/11, but misconstrued in its aftermath, and that if properly acknowledged will be clear (and restrictive) yet again, is to entrust the difficult questions in times of future fear to a handful of high-ranking executive branch officials. The Obama administration’s preliminary answer has to been to restrict the CIA, for the present, to use of the largely innocuous techniques included in the military’s interrogation manual. Perhaps the administration will stick to its current policy. But it may – within the bounds of the law – choose not to. And the administration’s ongoing inquiry into whether it should establish separate interrogation guidelines for the CIA reminds us how tough the question really is.

Before 9/11, responsible officials who sought to obey the law’s uncertain boundaries found the latitude to authorize coercive interrogation techniques. This past may suggest that there is little reason to expect different in the future. If the use of such techniques as “insects placed in a confinement box” is truly troubling, then a rethinking of current interrogation law might be in order.

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