Friday, January 07, 2005

Understanding the OLC Torture Memos (Coda)

Marty Lederman

Of course, even if CIA conduct outside U.S. jurisdiction is the not-so-secret subtext of the OLC Opinions, the current scandal concerning torture and inhumane treatment is hardly limited to the CIA. For, even in contexts where the President’s directive of “humane” treatment, and the prohibition on cruel, inhuman and degrading treatment, indisputably do apply, the Department of Defense appears to have a fairly unorthodox understanding of what it means to act "humanely" and to refrain from conduct that shocks the conscience.

Whatever the law might be with respect to the CIA, it is not disputed that the Armed Forces at GTMO, and in Iraq and Afghanistan, are subject to the President's directive of "humane treatment," are required to abide by the article 16 prohibition on cruel, inhuman and degrading treatment (because they are acting within U.S. jurisdiction), and are subject to the prohibitions of the UCMJ against cruelty, oppression or maltreatment of prisoners, assaulting prisoners, and communicating a threat to wrongfully injure a detainee. The Pentagon, in its Working Group Report, agrees that these restrictions apply.

And yet, according to several accounts, such as Neil Lewis’s story in the New York Times this past weekend, techniques that apparently have been approved at GTMO include:

-- prolonged sleep deprivation;

-- shackling prisoners in uncomfortable positions for many hours (to the point where one detainee who had been shackled overnight in a hot cell soiled himself and pulled out tufts of hair in misery);

-- tormenting prisoners by chaining them to a low chair for hours with bright flashing lights in their eyes and audio tapes of Lil' Kim, Rage Against the Machine and Eminem played loudly next to their ears (or in some cases a tape mix of babies crying and the television commercial for Meow Mix in which the jingle consists of repetition of the word "meow");

and, in at least one case,

-- tranquilizing a detainee, placing him in sensory deprivation garb with blackened goggles, hustling him aboard a plane that was supposedly taking him to the Middle East, and bringing him (unknowingly) back to GTMO, where he was put in an isolation cell and there subjected to harsh interrogation procedures that he was encouraged to believe were being conducted by Egyptian national security operatives.

Similarly, in its Report the DOD Working Group apparently concluded that the following techniques were “humane” and consistent with the UCMJ, the “shocks the conscience” standard, and other legal norms: Placing a hood over detainees during questioning; 20-hour interrogations; four days of sleep deprivation; forced nudity to create a “feeling of helplessness and dependence”; increasing “anxiety” through the use of dogs; quick, glancing slaps to the face or stomach; and the threat of transfer to another nation that might subject the detainee to torture or death. (It is not clear whether the Pentagon has ever formally approved these techniques, nor how often, if at all, military interrogators have used them.)

There are extremely strong arguments that if they approved or used certain of these techniques, military officials and other personnel have violated the law—including the UCMJ, article 16 of the CAT, the Geneva Conventions (as to detainees protected by those treaties), and the President’s directive that detainees be treated “humanely”—wholly apart from the torture statute that the OLC Opinions discuss. (Indeed, from the time of the 2001 enactment of the USA PATRIOT ACT until the enactment of the 2005 Defense Authorization Act this past October 28th, the torture statute itself did not even apply to GTMO because of a technical jurisdictional provision.)

And, in any event, if those recent accounts are correct about what the Pentagon has actually approved and implemented at Guantanamo, then the President’s assurance that all Armed Forces detainees be treated “humanely,” and that the military does not engage in cruel, inhuman and degrading treatment, ring hollow.

It is a very salutary development that OLC has finally construed the torture statute with the care and judgment that typically characterizes OLC’s best work, and that the Administration has reiterated the Nation’s commitment that torture is never legal, not even for “a good reason.” But that is only half the story. The other half remains untold. We are yet to have an informed public debate about what forms of conduct OLC has sanctioned as lawful, about what forms of interrogation and coercion this nation does permit, and about what is, in fact, being done in our name. If we are to have such a debate, the Administration would have to be much more forthcoming with explanations of which ostensibly “humane” treatments have been approved for military interrogators at Guantanamo and elsewhere, and would have to provide some information concerning the forms of inhumane treatment the CIA has been authorized to use (subject, of course, to redaction where there are legitimate and compelling needs for classification).

If we begin such a debate, here's one modest question to consider: Would it be too much to ask that Congress approve—and the President sign—a statute that would unambiguously prohibit all U.S. personnel, everywhere in the world, from engaging in cruel, inhuman, and degrading treatment—including, at a minimum, conduct that would shock the conscience, and thus violate the Due Process Clause, if it occurred within the U.S.?

P.S. In this series of posts, I may very well have misread the law in certain respects, or failed to properly understand some of the minutiae of the complex legal framework. I would very much welcome any corrections, additions or other editorial suggestions -- thanks.


Mr. Lederman,

A quick thank you for your efforts and time. I had just read your excellent first installation when I noticed the other pieces had been put up as well. They deserve attention.

Brilliant commentary, Marty. I had reached your conclusion in post #2 myself yesterday, after thinking about Gonzales' answers, and am glad your impressively informed analysis bears that out.

Your comment in post #4 re the lack of an INFORMED debate is all to painfully true. There are too many people whose only grasp of the whole scandal consist of "there was a big frat party at Abu Ghraib", or, "placing panties over a guy's head is fine with me". It is stunning how many people seem to minimize what has been done.

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A simple hot compress applied to the face is very soothing to those throbbing aches and pains of a blocked sinus, while a few drops of eucalyptus oil on a handkerchief can provide welcome relief for similar conditions. While supplements of vitamin C, D and zinc will shorten the lifespan of a common cold, a hot lemon drink is also extremely good. And be sure to cuddle-up in bed when you have a cold, as it will make the body sweat out the germs.

Cool lemon juice and honey are a great soother for a sore throat and gives the body much-needed vitamin C at the same time The juice of one lemon in a glass of water is sufficient. Melt the honey in a little hot water for ease of mixing.

A smear of Vaseline or petroleum jelly will do wonders for those sore lips and nose that often accompany a cold.

A 'streaming cold' where the nose and eyes water profusely, can respond to drinking onion water. Simply dip a slice of onion into a glass of hot water for two seconds, then sip the cooled water throughout the day. Half an onion on the bedside table also alleviates cold symptoms because its odor is inhaled while you sleep.

People prone to catarrh may find that chewing the buds from a pine or larch throughout the day will clear up their condition in just a few days.

Do you suffer from sore eyes? If your eyes are sore from lengthy exposure to the sun, try beating the white of an egg and then spread it over a cloth and bandage the eyes with it. Leave the preparation on overnight. Soft cheese (quark) is also a good remedy for this condition.

For those unpleasant times when you suffer from diarrhea, two tablespoons of brown vinegar will usually fix the problem. Vinegar can be rather horrible to take, but who cares! The problem is more horrible. Vinegar can usually be found in most people's cupboards, so you don't need to worry about finding someone to run to the shop for you in an emergency.

Sleepless? Instead of reaching for sleeping pills, which can quickly become addictive, try this: Drink only caffeine free tea or coffee starting late in the afternoon.. Go to bed earlier rather than later, as being overtired tends to keep people awake. Make sure the bedroom is dark and quiet. Use only pure wool or cotton sheets and blankets. Polyester materials can cause sweat and make you thirsty (if your child constantly asks for water throughout the night, this could be the reason).

And don't watch those scary movies just before retiring! If you still can't sleep, make a tea of lemongrass or drink a nightcap of herbal tea containing chamomile. It's easy to grow lemongrass in your garden or start a flower pot on the balcony for ease of picking. Simply steep a handful in boiling water for five minutes. Honey may be added for a sweetener.

Of course there will be times when you do need modern drugs, so if these simple remedies don't have the required affect, be sure to see a health care professional.

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The Geneva Conventions consist of four treaties formulated in Geneva, Switzerland, that set the standards for international law for humanitarian concerns. They chiefly concern the treatment of non-combatants and prisoners of war. sportsbook, They do not affect the use of weapons in war, which are covered by the Hague Conventions of 1899 and 1907 and the Geneva Protocol on the use of gas and biological weapons of 1925.

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