T Nation

Restatement of U.S. Policy Re: Treatment of Prisoners

The Justice Department released a new memo on its positions concerning acceptable treatment and interrogation methods of prisoners – the full text of the 17-page memo can be found here:

http://www.usdoj.gov/olc/dagmemo.pdf

Interestingly, despite all the claims, the memo clearly holds that the U.S. has not been engaging in any torture practices as policy – the Red Cross also admitted as much when it accused the U.S. of practices “tantamount to torture,” as if that meant anything. It either meets the criteria for torture or it does not – “tantamount to torture” is a meaningless attempt to criticize something the Red Cross does not like using strong-sounding language.

Here’s an article about it from the Wall Street Journal (no link available):

U.S. Revamps
Policy on Torture
Of War Prisoners
Legal Guidance Criticizes
Aggressiveness of Old Rules,
Redefines ‘Severe Pain’

By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
December 31, 2004; Page A1

The Bush administration issued a new definition of what constitutes torture of an enemy prisoner during interrogation, sharply scaling back its previous legal position that inflicting pain approaching that of organ failure or death was lawful, and retreating from earlier assertions that the president can authorize torture.

The 17-page memorandum issued by the Office of Legal Counsel, the Justice Department unit that provides definitive legal guidance for the executive branch, replaces a 50-page opinion issued in August 2002 that offered a legal framework to justify inflicting agony on prisoners and contended President Bush could set aside laws and treaties prohibiting torture.

The new document also concludes that the 2002 memo was wrong when it found that only “excruciating and agonizing pain” constituted torture, and that prosecution for committing torture was only possible if the defendant’s goal was simply to inflict pain, rather than to extract information. "There is no exception under the statute permitting torture to be used for a ‘good reason,’ " the new memo concludes, even if the aim is “to protect national security.”

Still, the memo concludes that even under its wider definition of torture, none of the interrogation methods previously approved by the Justice Department would be illegal.

The 2002 memo was incorporated into Defense Department interrogation policies approved by Defense Secretary Donald Rumsfeld, although administration officials say neither he nor the president actually authorized torture and say that subsequent incidents of prisoner abuse reported in Afghanistan, Iraq and Guantanamo Bay, Cuba, were aberrations.

But administration officials moved to revise their legal views after The Wall Street Journal published a draft of the Pentagon’s interrogation policies, which were predicated on the more aggressive view of torture, in June. Subsequent disclosures of confidential legal memoranda led White House Counsel Alberto Gonzales to disavow the August 2002 memo, which administration officials said would be replaced within weeks with a new memo ruling out torture. That effort stalled amid interagency disagreements, and was only completed after Deputy Attorney General James Comey, the Justice Department’s No. 2 official, ordered it released by year end.

A senior Justice Department official said the memo’s delay – it originally was planned for completion by August – derived from differences among agencies including the Central Intelligence Agency, the Defense and State departments and the White House.

Some apparently small semantic points occupied much of the internal debate over the memo, the official said. In particular, lawyers wrestled with whether “severe physical suffering” was something apart from “severe physical pain,” and whether each could independently be defined as torture.

“If you induced nausea in someone, day after day for weeks,” how would it be classified, the official said, by way of example. “It’s not severe pain, it’s not mental as it’s a sensation,” the official said. But over a prolonged period it could be considered physical suffering, and the Justice Department ultimately concluded it could constitute torture.

The new document comes less than a week before Mr. Gonzales, nominated to succeed John Ashcroft as attorney general, faces a Senate confirmation hearing where Judiciary Committee members plan to grill him on his role in formulating interrogation policies. The White House declined to comment on the new memo.

The new document focuses on the main federal law prohibiting torture, enacted to enforce the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, which the U.S. ratified in 1994. The opinion was principally drafted by acting Assistant Attorney General Daniel Levin, who heads the legal counsel office, and his predecessor, Jack Goldsmith, now a professor at Harvard Law School. Addressed to Mr. Comey, it acknowledges that “questions have since been raised” about the prior memo’s legal analysis, particularly its claims that the president held the power to set aside anti-torture laws and that even if he didn’t, such laws only prohibited pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.”

The Justice Department now believes that analysis of the president’s authority to order torture, or to immunize subordinates from prosecution for committing torture, is “unnecessary” because of Mr. Bush’s “unequivocal directive that U.S. personnel not engage in torture.”

Although the new memo has been publicly released, several related opinions that apply its conclusions to specific interrogation methods remain classified, the senior Justice official said.

The new memo is “a step forward from a very dark cave, but it certainly doesn’t solve everything,” said Tom Malinowski, Washington advocacy director for Human Rights Watch. He noted that while expanding the previous definition of torture, the memo still seeks to distinguish torture from lesser forms of abuse also prohibited by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

“It would have been more clear and constructive had they pointed out that these other things which may not amount to torture under the law are still illegal,” Mr. Malinowski said.

John Yoo, a former Justice Department official who worked on the 2002 memo, said the revision would be of little help to agencies charged with fighting the war on terror. “This memo muddies the water because it makes it difficult to figure out how the torture statute applies to specific interrogation methods,” said Mr. Yoo, a law professor at the University of California, Berkeley. “It removed all the clear lines but didn’t change the basic analysis.”

While the White House has said that President Bush, in a February 2002 directive, required that prisoners be treated humanely, critics have claimed that earlier confidential memoranda on interrogation policies trickled down to the field, and contributed to cases of abuse of prisoners in Afghanistan, Guantanamo Bay, and most notoriously, in the Abu Ghraib prison in Baghdad. Moreover, critics observed, the president’s directive suggested that the detainees had no legal right to humane treatment, but would receive it only as a matter of his policy.

After the earlier memos were drafted, dozens of prisoner-abuse cases have emerged.


CHANGING THE POLICY

A new Justice Department memo scales back the Bush administration’s previous legal conclusions on interrogation methods that constitute torture. In points where the new opinion differs from previous policy, it establishes that:

  • “Severe” pain is no longer narrowly limited to the intensity of pain “accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.”

  • Severe physical “suffering” can be distinct from severe physical “pain.”

  • In order to be classified as “prolonged” mental harm, conduct does not have to last for “months or even years.”

  • Infliction of severe pain or suffering does not have to be the defendant’s “precise objective” in order to prosecute for war crimes.

Source: Justice Department

Very interesting article today concerning the effect of the abuse scandals on our ability to collect intelligence:

Too Nice for Our Own Good

By HEATHER MAC DONALD
January 6, 2005; Page A16

Senate Democrats plan to turn the confirmation hearings of Alberto Gonzales into a referendum on the war on terror – specifically, on the Bush administration’s decision that the Geneva Conventions do not apply to al Qaeda terrorists. They will argue that the denial of prisoner-of-war status to al Qaeda fighters resulted in the torture of prisoners in Iraq’s Abu Ghraib prison.

This “torture narrative” is gospel truth among elite opinion-makers, yet it is false in every detail. It relies on ignorance of the actual interrogation techniques promulgated after 9/11. However spurious, the narrative has had a devastating effect on interrogators’ ability to get intelligence from detainees.

Soon after the Afghanistan fighting began, Army interrogators realized that their part in the war on terror was not going according to script. Pentagon doctrine, honed in the Cold War, held that 95% of prisoners would break upon straightforward questioning. But virtually no al Qaeda and Taliban detainee was giving up information – not in response to direct questioning, and not in response to army-approved psychological gambits for prisoners of war.

Some al Qaeda fighters had received resistance training, which taught that Americans were strictly limited in how they could question prisoners. Failure to cooperate, they had learned, carried no penalties and certainly no risk of torture – a sign, al Qaeda said, of American weakness. Even if a prisoner had not previously studied U.S. detention policies, he soon figured them out. “It became very clear very early on to the detainees that the Americans were just going to have them sit there,” explains an Afghanistan interrogator. “They realized: ‘The Americans will give us our Holy Book, they’ll draw lines on the floor showing us where to pray, we’ll get three meals a day with fresh fruit . . . we can wait them out.’” Traditional appeals to a prisoner’s emotions, such as playing on his love of family or life, had little effect. “The jihadists would tell you, ‘I’ve divorced this life, I don’t care about my family,’” recalls an interrogator at Guantanamo Bay, Cuba.

Frustrated interrogators across the globe concluded that their best hope for getting information was to recreate the “shock of capture” – that vulnerable mental state when a prisoner is most uncertain and most likely to respond to questioning. Many argued for a calibrated use of “stress techniques” – prolonged questioning that would cut into a detainee’s sleep schedule, for example, or making a prisoner kneel or stand.

A crack interrogator from Afghanistan explains the psychological effect of stress: “Let’s say a detainee comes into the interrogation booth and he’s had resistance training. He knows that I’m completely handcuffed and that I can’t do anything to him. If I throw a temper tantrum, lift him onto his knees, and walk out, you can feel his uncertainty level rise dramatically. He’s been told: ‘They won’t physically touch you,’ and now you have. The point is not to beat him up but to introduce the reality into his mind that he doesn’t know where your limit is.” Grabbing someone by the top of the collar has had a more profound effect on the outcome of questioning than any actual torture could have, this Army reservist maintains. “The guy knows: You just broke your own rules, and that’s scary.”

Such treatment, though far short of torture, probably violates the Geneva Convention’s norms for lawful prisoners of war, who must be protected from “any form of coercion.” But terrorists fail every test for coverage under the Geneva Conventions: They seek to massacre civilians, they conceal their status as warriors, and they treat their own prisoners to such niceties as beheadings. President Bush properly found that terrorists do not qualify as Geneva-protected prisoners of war.

In April 2003, the Pentagon finalized the rules for questioning unlawful combatants in Cuba, following a fierce six-month debate. The approved techniques were in many respects more restrictive than the Geneva conventions themselves. Providing a detainee an incentive for cooperation – a McDonald’s Filet-O-Fish sandwich or a Twinkie, say – was forbidden unless specifically cleared by the secretary of defense, because not every prisoner would receive the goodie. Other longstanding army psychological techniques, such as attacking a detainee’s pride or the classic good cop/bad cop routine, also required a specific finding of military necessity and notice to Donald Rumsfeld.

The only nonconventional “stress” techniques on the final Guantanamo list are such innocuous interventions as adjusting the temperature or introducing an unpleasant smell into the interrogation room (but only if the interrogator is present at all times), reversing a detainee’s sleep cycles from night to day, and convincing a detainee that his interrogator is not from the U.S. And those mild techniques could only be used with extensive bureaucratic oversight and medical monitoring to ensure “humane,” “safe,” and “lawful” application.

The decision to exclude terrorists from Geneva coverage and the interrogation methods approved for unlawful combatants in Cuba had nothing to do with the Abu Ghraib anarchy. Military commanders in Iraq emphasized repeatedly that the conflict there would be governed by the Geneva Conventions. The interrogation rules developed for Iraq explicitly stated that they were promulgated under Geneva authority. Except for the presence of dogs, none of the behavior in the photos was included in interrogation rules. Mandated masturbation, dog leashes, assault, and stacking naked prisoners in pyramids – none of these was approved (or even contemplated) interrogation practice in any theater of conflict.

The Abu Ghraib abuse resulted rather from the Pentagon’s failure to respond adequately to the Iraq insurgency and its inability to maintain military discipline in the understaffed facility. As the avalanche of prisoners taken in the street fighting overwhelmed the minimal contingent of soldiers at Abu Ghraib, order within the ranks broke down as thoroughly as order in the operation of the prison itself. The guards’ sadistic and sexualized treatment of prisoners was just an extension of the chaos they were already wallowing in with no restraint from above. Almost all the behavior shown in the photographs occurred in the dead of night among military police, wholly separate from interrogations. Most abuse victims were not even scheduled to be interrogated.


Equally irrelevant to the prisoner abuse scandal is the infamous torture memo written by Assistant Attorney General Jay S. Bybee in August 2002. The CIA had asked him for guidance in interrogating al Qaeda operative Abu Zubaydah. Mr. Bybee responded that a U.S. law against torture forbade only physical pain equivalent to that “accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” and that anti-torture conventions may not even bind the president during war. The Bybee opinion had no effect on interrogation practices among Pentagon interrogators in Afghanistan, Cuba or Iraq. Army interrogators were perfectly ignorant of executive-branch deliberations on the outer boundaries of pain and executive power, which were prepared for and seen only by the CIA.

In the wake of the Abu Ghraib disaster and the ensuing media storm, the Pentagon has shut down every stress technique but one – isolation – and that can be used only after extensive review. An interrogator who so much as requests permission to question a detainee into the night could be putting his career in jeopardy. Interrogation plans have to be triple-checked all the way up through the Pentagon by bureaucrats who have never conducted an interrogation in their lives.

To succeed in the war on terror, interrogators must be allowed to use carefully controlled stress techniques against unlawful combatants. Stress works, say interrogators. The techniques that the military has used to date come nowhere near torture; the advocates can only be posturing in calling them such. These self-professed guardians of humanitarianism need to come back to earth. Our terrorist enemies have declared themselves enemies of the civilized order. In fighting them, we must hold ourselves to our own high moral standards – without succumbing to the utopian illusion that we can prevail while immaculately observing every precept of the Sermon on the Mount.

Ms. Mac Donald is a contributing editor at City Journal, from whose Winter issue this is adapted.

The Dems are turning the Gonzalez confirmation hearings for AG into a referendum on U.S. interrogation policies.

Here’s a statement from conservative Republican Senator Lindsey Graham, who has been critical of the administration in the wake of the scandals in Abu Ghraib – thoughts?

http://www.washingtonpost.com/wp-dyn/articles/A53883-2005Jan6_4.html

[EXCERPT from Washington Post article on confirmation hearings]

I think we’ve dramatically undermined the war effort by getting on a slippery slope in terms of playing cute with the law, because it’s come back to bite us.

Abu Ghraib has hurt us in many ways. I travel throughout the world like the rest of the members of Senate, and I can tell you it is a club that our enemies use, and we need to take that club out of their hands.

Guantanamo Bay ? the way it’s been run has hurt the war effort.

So if we’re going to win this war, Judge Gonzales, we need friends and we need to recapture the moral high ground. And my questions are long that line.

To those who think that you can’t win a war without ? with the Geneva Convention applying ? I have another role in life, I’m a judge advocate, I’m a reserve judge in the Air Force. . . . Part of my job for the last 20 years, along with other judge advocates, is to advise commanders about the law of armed conflict.

And I’ve never had a more willing group of people to listen to the law. Because every Air Force wing commander lives in fear of an air crew being shot down and falling into enemy hands. And we instill in our people as much as possible that, “You’re to follow the law of armed conflict, because that’s what your nation stands for, that’s what you’re fighting for, and you’re to follow it because it’s there to protect you.”

Now, to Secretary Powell. He took a position that I disagree with legally, but in hindsight might have been right.

I agree with you, Judge Gonzales, to give Geneva Convention protection to Al Qaida and other people like Al Qaida would in the long run undermine the purpose of the Geneva Convention. You would be giving a status in the law to people who do not deserve it, which would erode the convention.

But Secretary Powell had another role in life, too. He was a four-star general, chairman of the Joint Chiefs. And to those who think that the Geneva Convention is a nicety, or that taking torture off the table is naive and a sign of weakness, my answer to them is the following: that Secretary Powell has been in combat. And I think you weaken yourself as a nation when you try to play cute and become more like your enemy instead of like who you want to be.

So I want to publicly say that the lawyers in the secretary of state’s office, while I may disagree with them, and while I may disagree with Secretary Powell, was advocating the best sense of who we are as people.

Now, having said that, the Department of Justice memo that we’re all talking about now was, in my opinion, Judge Gonzales, not a little bit wrong, but entirely wrong in its focus, because it excluded another body of law called the Uniform Code of Military Justice.

And, Mr. Chairman, I have asked since October for memos from the working group by judge advocate general representatives that commented on this Department of Justice policy, and I have yet to get those memos.

I have read those memos. They’re classified for some bizarre reason.

But generally speaking, those memos talk about that if you go the road suggested, you’re making a U-turn as a nation; that you’re going to lose the moral high ground, but more importantly, that some of the techniques and legal reasoning being employed into what torture is ? which is an honest thing to talk about, it’s OK to ask for legal advice. You should ask for legal advice.

But this legal memo, I think, put our troops at jeopardy because the Uniform Code of Military Justice specifically makes it a crime for a member of our uniform forces to abuse a detainee. It is a specific article of the Uniform Code of Military Justice for a purpose: Because we want to show our troops not just in words but in deeds that you have an obligation to follow the law.

And I would like for you to comment if you could. And I would like you to reject, if you would, the reasoning in that memo when it came time to give a torturous view of torture.

Will you be willing to do that here today?

Do you suppose that anybody being treated under these guidelines might actually be innocent?

[quote]vroom wrote:
Do you suppose that anybody being treated under these guidelines might actually be innocent?[/quote]

vroom:

I don’t just suppose, I think it’s a statistical certainty. Even in the criminal justice system, with full trials, you have some innocent people who are convicted, and these procedures necessarily do not come with full judicial trials and factfinding.

It is simply impossible to prosecute a war and offer up full judicial process to all captured people. It would be logistically impossible – and I will also note that it would be extremely dangerous to use a criminal definition and standard of proof to determine “guilt” in these situations – just because one couldn’t prove something beyone a reasonable doubt in a courtroom doesn’t mean a person isn’t culpable or dangerous.

This isn’t to imply that we should take these matters lightly. However, in cases in which we have a high degree of certainty that we are dealing with people who are terrorists or confederates of terrorists, I don’t believe we should tie our own hands, or extend the protections of the Geneva Conventions to those who refuse to abide by their rules.

This may or may not count as a case of tactics the Red Cross would deem “tantamount to torture” getting results:

EXCERPT

"Frustration with prisoner stonewalling reached a head with Mohamed al-Kahtani, a Saudi who had been fighting with Usama bin Ladin?s bodyguards in Afghanistan in December 2001. By July 2002, analysts had figured out that Kahtani was the missing 20th hijacker. He had flown into Orlando International Airport from Dubai on August 4, 2001, but a sharp-eyed customs agent had denied him entry. Waiting for him at the other side of the gate was Mohamed Atta.

"Kahtani?s resistance strategies were flawless. Around the first anniversary of 9/11, urgency to get information on al-Qaida grew. Finally, army officials at Guant?namo prepared a legal analysis of their interrogation options and requested permission from Defense Secretary Donald Rumsfeld to use various stress techniques on Kahtani. Their memo, sent up the bureaucratic chain on October 11, 2002, triggered a fierce six-month struggle in Washington among military lawyers, administration officials, and Pentagon chiefs about interrogation in the war on terror.

"…Here?s what the interrogators assumed they could not do without clearance from the secretary of defense: yell at detainees (though never in their ears), use deception (such as posing as Saudi intelligence agents), and put detainees on MREs (meals ready to eat)…instead of hot rations…

"The most controversial technique approved was ‘mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing,’ to be reserved only for a ‘very small percentage of the most uncooperative detainees’ believed to possess critical intelligence. A detainee could be poked only after review by Gitmo?s commanding general of intelligence and the commander of the U.S. Southern Command in Miami, and only pursuant to ‘careful coordination’ and monitoring.

"…Pentagon lawyers revolted, claiming that the methods approved for Kahtani violated international law. Uncharacteristically irresolute, Rumsfeld rescinded the Guant?namo techniques in January 2003.

"Kahtani?s interrogation hung fire for three months, while a Washington committee, with representatives from the undersecretary of defense, the Defense Intelligence Agency, the air force, army, navy, and marine corps, and attorneys from every branch of the military, considered how to approach the 20th hijacker.

"The outcome of this massive deliberation was more restrictive than the Geneva conventions themselves, even though they were to apply only to unlawful combatants, not conventional prisoners of war, and only to those held at Guant?namo Bay. It is worth scrutinizing the final 24 techniques Rumsfeld approved for terrorists at Gitmo in April 2003…

"…For one, providing a detainee an incentive for cooperation?such as a cigarette or, especially favored in Cuba, a McDonald?s Filet-O-Fish sandwich or a Twinkie unless specifically approved by the secretary of defense…

"Similar restrictions?a specific finding of military necessity and notice to Rumsfeld?applied to other tried-and-true army psychological techniques. These included ‘Pride and Ego Down’?attacking a detainee?s pride to goad him into revealing critical information?as well as ‘Mutt and Jeff,’ the classic good cop?bad cop routine of countless police shows. Isolating a detainee from other prisoners to prevent collaboration and to increase his need to talk required not just notice and a finding of military necessity but ‘detailed implementation instructions [and] medical and psychological review.’

"The only non-conventional ‘stress’ techniques on the final Guant?namo list are such innocuous interventions as adjusting the temperature or introducing an unpleasant smell into the interrogation room, but only if the interrogator is present at all times; reversing a detainee?s sleep cycles from night to day (call this the ‘Flying to Hong Kong’ approach); and convincing a detainee that his interrogator is not from the U.S.

"…After Rumsfeld cleared the 24 methods, interrogators approached Kahtani once again. They relied almost exclusively on isolation and lengthy interrogations. They also used some ‘psy-ops’ (psychological operations). Ten or so interrogators would gather and sing the Rolling Stones? ‘Time Is on My Side’ outside Kahtani?s cell. Sometimes they would play a recording of ?Enter Sandman? by the heavy-metal group Metallica, which brought Kahtani to tears, because he thought (not implausibly) he was hearing the sound of Satan.

"Finally, at 4 am?after an 18-hour, occasionally loud, interrogation, during which Kahtani head-butted his interrogators?he started giving up information, convinced that he was being sold out by his buddies. The entire process had been conducted under the watchful eyes of a medic, a psychiatrist, and lawyers, to make sure that no harm was done. Kahtani provided detailed information on his meetings with Usama bin Ladin, on Jose Padilla and Richard Reid, and on Adnan El Shukrijumah, one of the FBI?s most wanted terrorists, believed to be wandering between South and North America.

“Since then, according to Pentagon officials, none of the non-traditional techniques approved for Kahtani has been used on anyone else at Guant?namo Bay.”

–from Heather MacDonald: "How to Interrogate Terrorists/City Journal/Winter 2005