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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
How Did the Department of Defense Decide to Authorize Torture, Cruel Treatment, and Violations of the Uniform Code of Military Justice?
The Senate Armed Services Committee is currently holding a hearing addressing that very question. The Committee has released several new, important documents relating to the question.
In late 2002, interrogators at GTMO were growing increasingly frustrated that certain detainees, especially Mohammad al-Qahtani, would not provide them with the sort of actionable intelligence they were hoping for. On September 25, 2002, David Addington, Jim Haynes, John Rizzo (Acting CIA General Counsel, Michael Chertoff, and others, visited GTMO and consulted with officials there about interrogations.
The next week, on October 2d, those officials convened, with CIA Associate General Counsel Jonathan Fredman, to review "Counter Resistance Strategy," at a meeting in which they contemplated the use of the aggressive "SERE" techniques. When Col. Cummings noted that they could not use sleep deprivation, Diane Beaver, a Staff Judge Advocate for the Joint Task Force 170/JTF, Guantanamo Bay, responded "Yes, we can -- with approval." Beaver noted that "we may need to curb the harsher operations while ICRC [the Red Cross] is around. Dave Becker noted that they had "many reports" of sleep deprivation being used at Bagram, in Afghanistan. Beaver's response?: "True, butofficially it is not happening. It is not being reported officially. The ICRC is a serious concern." Cummings noted that the new Pysh Op plan had already been passed up the chain, and Jonathan Fredman of the CIA added that "DOJ has provided much guidance on this issue." Fredman then basically describes the August 2002 OLC torture memo in detail.
Then there was a discussion about whether to videotape the interrogation sessions. Beaver responded in the negative: "Videotapes are subject to too much scrutiny in court."
On October 11th, Beaver wrote her famous memo recommending the use of the enhanced techniques. Those techniques included many that were later approved for use on al-Qahtani: forced nudity, forced grooming, "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress," 20-hour interrogations, stress positions, and the use of mild physical contact such as grabbing, poking and light pushing. The proposed techniques also included waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."
The problem, of course, was the law. In addition to the torture statute, Beaver noted that the Uniform Code of Military Justice prohibits U.S. armed forces from, among other things, engaging in cruelty, oppression or maltreatment of prisoners (art. 93), assaulting prisoners (art. 128) (a prohibition that includes a demonstration of violence that results in reasonable apprehension of immediate bodily harm), and communicating a threat to wrongfully injure a detainee (art. 134). The UCMJ plainly prohibits many of the techniques the military wished to use against suspects such as al-Qahtani. Beaver wrote that "Article 128 is the article most likely to be violated because a simple assault can be consummated by an unlawful demonstration of violence which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm, and a specific intent to actually inflict bodily harm is not required." Beaver then notes, almost in passing, that physical contact with a detainee "will technically constitute an assault under Article 128, UCMJ." In an earlier paragraph, Beaver is still more candid in acknowledging that physical contact, as well as the "water cure" version of waterboarding, "would constitute a per se violation of Article 128 (Assault)," and that threats of death "may also constitute a violation of Article 128, or also Article 134 (communicating a threat)."
Well, then, if some of the proposed techniques are acknowledged to be "per se" federal crimes, how was it that Beaver could then recommend their use and (in a cover memo) conclude that they "do not violate applicable federal law"? Here's the only clue in her memo: She writes that because of the "per se" prohibitions of the UCMJ, "[i]t would be advisable to have permission or immunity in advance from the convening authority, for military members utilizing these methods." No explanation here of the legal theory pursuant to which such ex ante "permission or immunity" to violate the law could be conferred. But Beaver clearly had been made aware of DOJ's conclusion that the President, as Commander in Chief, could simply authorize the overriding of mere statutes such as the UCMJ.
Beaver's memo went up the chain of command. On October 25, 2002, General Hill transmitted the memo to the Joint Chiefs -- but Hill, like Beaver, indicated that the law stood in the way. "I am uncertain," he wrote, "whether all the techniques . . . are legal under US law," and he expressed his "desire to have as many options as possible at my disposal and therefore request that Department of Defense and Department of Justice lawyers review" some of the techniques.
DOD General Counsel Jim Haynes and Secretary Rumsfeld did not act on the Hill memo for over a month. What happened in that time? Now we know: The JAGs of the Armed Services opined, in early November, that the use of the SERE techniques would likely violate criminal laws (the torture statute and/or the UCMJ), and, for good measure, would appear to also violate the President's directive that detainees be treated "humanely." (These lawyers did not understand what the President and Vice President meant by "humane.") Oh, and the use of those techniques would also undermine the ability to obtain convictions in any military commission proceedings. (Prescient, weren't they?)
OK, so Beaver and Hill both opined that the techniques would likely violate the law -- and the JAGs advised likewise. So what happened next?
Note that carefully: Haynes was advised by many lawyers, throughout the Pentagon, that the techniques would be unlawful -- after which, without explanation, he informed the Secretary that they all "may be legally available" -- and recommended approval of some of the most extreme techniques.
How could that possibly have happened?
Well, it's quite obvious what occurred here: Haynes, Rumsfeld, Wolowitz, Feith, Cambone, et al., had been made aware of OLC's opinion that the Commander in Chief could authorize any interrogation techniques, whether or not such conduct would violate any statutes or treaties. They had probably seen the August 2002 torture memo, and almost certainly were advised orally that OLC had in its back pocket 1001 legal theories -- topped off by the Commander in Chief argument --- why mere statutes and treaties posed no obstacle to the use of torture, cruel treatment, threats, and assaults. That is to say, they had received informal OLC advice that tracked the formal memo they eventually received from John Yoo on March 14, 2003.
After all, let's not forget that, as Seymour Hersh reported in 2004, Secretary Rumsfeld and Under-Secretary Cambone had, much earlier, established secret special access programs (SAPs) within DoD that were authorized to use rough treatment, and sexual humiliation, in interrogating not only suspected al Qaeda operatives in Afghanistan, but also the numerous persons rounded up as possible "insurgents" in Iraq.As Beaver, et al. well knew, these forces were already using cruel treatment in Afghanistan. (For a recent account of the nature of that treatment, see this latest McClatchy story.) And as the Fay Report explained, "CIA detention and interrogation practices [in Iraq] led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib" (pp. 52-53). The CIA practices and techniques led to a "perception" that such techniques and practices "were suitable and authorized for DoD operations" (pp. 118-119). Posted
by Marty Lederman [link]