Were Enhanced Interrogation Techniques Legal?

Were Enhanced Interrogation Techniques Legal?

By: Dr. Thomas W. Francis Jr.

Introduction

            The purpose of this article is to answer the question, “Were Enhanced Interrogation Techniques Legal?” To answer this question, this article will, first, consider the use of Enhanced Interrogation Techniques (EITs) in the larger historical context by providing a brief synopsis of the history of interrogations. This overview will demonstrate that legal standards evolve as human morality shifts. Furthermore, this article will examine the legality of EITs under both International Law codified in the Convention Against Terror (CAT) and U.S. law codified in 18 U.S.C. §2340. Additionally, this article will assess the legality of EITs in relation to Prisoner of War (P.O.W.) status under the Geneva Conventions. In the respective sections, this article will demonstrate that EITs were legal according to U.S. Interpretation of International Law, were legal under 18 U.S.C. §2340, and that Al-Qa’eda and Taliban detainees were correctly designated as unlawful combatants and correctly denied P.O.W. status under the Geneva Conventions. This article concludes with a proposal that EITs should still be available, but only in a limited capacity under very unique circumstances.  

were eits legal

I. Synopsis of the Use of Interrogations in History

Interrogations have been used throughout human history to extract intelligence. Ancient religious texts, such as the Book of Genesis, interpreted the rise of evil and the depravity of humanity as the result of an interrogation.[1] Although scholars are divided about the nature and historicity of the Genesis narrative, it is apparent that the audience would have had some understanding of the adversary’s methodology in extracting damning information.[2] The principles underlying this narrative are paralleled in the legal systems that developed in the Ancient Near East.[3]

interrogations and the churchSeveral millennia later, in an attempt to cleanse the Medieval Catholic church of detractors, Pope Gregory IX authorized interrogation techniques to extract confessions from suspected heretics.[4] This first inquisition was designed to deal with an upsurge in what the Catholic Church considered heretical activity from the Cathars in France.[5] The Pope deputized priests who would come to a town and interrogate people, often using very harsh methods.[6] These priests (Inquisitors) would conduct tribunals and sentence people to a variety of punishments based on the solicited confessions.[7] It is important to recognize that these Inquisitors were given authority to use to torture, if necessary, to secure confessions.[8] In fact, they were provided manuals that described how to properly and effectively interrogate suspected heretics.[9] Although they were proficient in acquiring the desired confession, if a person confessed to something under torture, the Inquisitors were not prepared to accept that confession as evidence, unless the person was willing to repeat the confession after a day or so of contemplation.[10] The most likely reason that the suspect would willingly repeat the confession was the threat of repeated torture. Although the Inquisitors believed that a person would only confess if he was guilty of the charge, it is more likely that the suspect was physically and psychologically weakened by the torture such that he or she was willing to say whatever he or she had to in order for the pain to stop.

While legal systems have substantially evolved and developed numerous safeguards, the legal system has never been perfect. In an effort to solicit God’s help in trying difficult cases,  from the 9th to the 13th century, Trial by Ordeal was a common method used to extract confessions from defendants in criminal cases.[11] Providing a rationale for the use and effectiveness of Trial by Ordeal, Peter Leeson explains, that the only ones who knew with any certainty if a defendant was guilty or innocent was the defendant himself and God above.[12] trial by ordealThus, when ordinary evidence was lacking, the legal system asked God to reveal the defendant’s criminal status.[13] Trial by Ordeal took several forms, from dunking the accused in a pool of holy water to walking him barefoot across burning plowshares.[14] In Trial by Cold Water Ordeal, the accused was thrown into a pool of water while bound by ropes.[15] If the defendant sank she was innocent. If she floated and did not sink, she was considered guilty, having been rejected by the water.[16] The only way to avoid such a horrific ordeal, was to announce one’s guilt and receive the appropriate punishment, which may have been death by another means. Thus, an innocent person may have been motivated by the threat of the ordeal to provide false or incriminating information.

brown v miss.jpgModern history also provides examples of interrogations being used to obtain confessions from suspects in criminal proceedings. However, in some of the worst examples, innocent people were viciously beaten until they confessed. In Brown v. Mississippi, three African-American suspects were beaten until they confessed to murder.[17] At trial, the evidence against the defendants consisted only of their own confessions, which were induced by severe and persistent beatings at the hands of local law enforcement.[18] Although the trial court was fully aware that the confessions were the result of these violent (and racially motivated) beatings, the judge admitted the confessions as evidence, and the defendants were subsequently convicted of murder.[19] The Supreme Court of the United States, however, held that confessions induced by violence are not consistent with the Due Process Clause of the 14th Amendment and such evidence is therefore inadmissible at trial, and reversed the convictions.[20]

This brief survey of the historical use of interrogations demonstrates that as morals and values change so does the law. The collective morality of a people, whether dictated by the religious establishment or the society as a whole, has been the basis and/or motivation for the shifts in the legality of interrogations. Thus, it is appropriate to, on the one hand, interpret the legality of an act (i.e., interrogations) in its historical and legal context. Conversely, it is important to critique the legality of an act in light of developments or changes in the legal system. Therefore, it is the aim of this article to demonstrate that the implementation and use of EITs on High-Value Detainees (HVDs) was legal under both International and U.S. law at the time they were employed.[21] However, a shift in either the collective morality or a decreased level of the collective fear about the nature and threat of terror, or both, created the political backlash that has now rendered EITs illegal.[22]

II. Authorized Enhanced Interrogation Techniques

In retrospect, some commentators, such as David Brooks, have referred to EITs as torture.[23] Philip Zelikow, a former White House official, believes that what was once euphemistically called “enhanced interrogation” was essentially torture, although he was not willing to call them illegal.[24] While these perspectives may represent the view of a significant percentage of the American people, they don’t represent the view of a majority of Americans,[25] nor do they reflect the legal definition in the Interrogation Guidelines issued by the Director of Central Intelligence (DCI), George Tenet, in January 2003, which defined both standard and enhanced interrogation techniques.[26]

According to these guidelines, EITs were defined as techniques that do incorporate significant physical or psychological pressure beyond standard techniques.[27] Standard Interrogation Techniques (SITs) have been codified in the Army Manual, which prescribes 19 interrogation techniques.[28] However, to go beyond the SITs, Tenet’s Interrogation Guidelines required the following:

(1) Prior approval in writing from the Director of the CIA, DCI Counterterrorism Center (CTC), with the concurrence of the Chief CTC Legal Croup; and

(2) Only where the Director of the CIA or CTC has determined that:

(a) the specific detainee is believed to possess information about risks to citizens of the United States or other nations,

(b) the use of Enhanced Techniques is appropriate in order to obtain that information,

(c) appropriate medical and psychological personnel have concluded that the use of the Enhanced Technique(s) is not expected to produce “severe physical or mental pain or suffering,” and

(d) the personnel authorized to employ the Enhanced Technique(s) have completed the attached Acknowledgement.[29]

Thus, in order to employ EITs against a detainee, precise protocols and standards had to be followed. Removed from this context, the methods used may appear to be extreme, if not torture. However, when considered in light of the guidelines set for the DCI Director, EITs appear to be a limited tool that were used only in specific circumstances and under strict controls.

When one thinks of EITs the first image that likely comes to mind is that of a detainee being waterboarded. The Movie Zero Dark Thirty provides a graphic image of a detainee being subjected to repeated waterboarding, as well as other interrogation techniques that appear to be extremely brutal.[30] An examination of the approved EITs demonstrates that this movie, like other popular portrayals, seems to exaggerate the use of EITs. Thus, an informed understanding of EITs requires one to review the list of actual approved techniques removed from sensational and hyperbolic portrayals. EITS a listThe approved list of EITs included the following:

(1) Attention Grasp: Grabbing the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator;

(2) Walling Technique: During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.

(3) Facial Hold: The facial hold is used to hold the detainee’s head immobile. The    interrogator places an open palm on either side of the detainee’s face and the interrogator’s fingertips are kept well away from the detainee’s eyes.

(4) Insult Slap: With the facial or insult slap, the fingers are slightly spread apart. The interrogator’s hand makes contact with the area between the tip of the detainee’s chin and the bottom of the corresponding earlobe.

(5) Cramped confinement: The detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space, it can last up to 18 hours.

(6) Insects: Insects placed in a confinement box involve placing a harmless insect in the box with the detainee.

(7) Wall Standing: During wall standing, the detainee may stand about 4 to 5 feet from the wall with his feet spread to approximately shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all his body weight. The detainee is not allowed to reposition his hands or feet.

(8) Stress Positions: The application of stress positions may include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45-degree angle.

(9) Sleep Deprivation: Sleep deprivation will not exceed 11 days at a time.

(10) Waterboarding: The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee’s head is immobilized and an interrogator places a cloth over the detainee’s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation.[31]

In addition to conflating the employment of EITs, several commentators have likewise misunderstood or misstated the purpose and justifications for EITs.[32] However, the purpose, as expressed by Steven Bardbury, Former Principal Deputy Assistant Attorney General, was to dislodge the detainee’s expectations of how we would be treated while in U.S. custody.[33] Bardbury further explains that that program was designed to create a situation in which the detainee felt that he was not in control, and to establish a relationship of dependence on the part of the detainee.[34] The primary purpose of employing EITs was psychological.[35] That is, EITs were not intended to extract information through the imposition of pain, but to use the EITs, which involve varying degrees of physical pain, to generate psychological responses that would lead to the extraction, verification, or collaboration of vital, actionable intelligence.

Although it is easy to view any one of, if not all, the EITs through the prism of the pain they inflicted, it is incorrect to claim that the infliction of pain was the means to extracting the intelligence. EITs were used to breakdown the resistance of HVDs who had, in some cases, be trained to resist SITs and possessed vital intelligence. By creating an environment of complete and total dependence on the part of the detainee, the interrogator was able to collaborate and obtain actionable intelligence. Admittedly, it can be difficult to appreciate the psychological techniques behind the EITs because the physical application is appalling to one’s sensibilities. However, this is no excuse for avoiding an honest and intellectual evaluation of the nature of the EITs in light of their purpose.

Unlike the portrayals of EITs taking place apart from oversight and controls, these techniques were employed under strict conditions, including careful supervision and monitoring, in a manner that was determined to be safe, effective, and lawful.[36] Prior to employing EITs on an HVD, certain precautions were taken, such as medical and psychological evaluations, restricting dietary intake to limit the amount of vomiting.[37] Careful evaluation of the HVD was conducted by the CIA’s Office of Medical Services (OMS) who were not themselves involved in the actual interrogation, but were tasked with ensuring the detainee’s health and safety.[38] Moreover, interrogations were conducted with medical personnel at hand.[39] If, in the professional judgment of qualified medical personnel, there were significant medical or psychological contraindications, then an EIT could not be used on a particular detainee.[40] Far from the reckless actions of a few Army Reservists in the Abu Ghraib prison, the CIA’s program was a controlled and regulated environment wherein highly-trained personnel conducted interrogations under strict protocols and procedures.

 

III. High-Value Detainees and Enhanced Interrogation Techniques

Not all detainees were subjected to EITs. On May 15, 2006, the United States Department of Defense (DOD) released a list of 759 former and current detainees who had been held in military custody in detainment camps.[41] Of these detainees, the CIA identified approximately 98 who were classified as HVDs. HVDs were persons believed to possess actionable knowledge about imminent threats against the U.S. or information to help locate senior leadership of Al-Qa’eda or the Taliban, and who were resisting SITs.[42] Of those 98 detainees, the CIA only used enhanced techniques with a total of 30.[43] Many, if not all, of those 30 detainees were believed to have received training in the resistance of interrogation methods.[44] Moreover, Al-Qa’eda had actively sought information regarding U.S. interrogation methods in order to enhance that training.[45]

Although it is common for the casual observer to conflate the Abu Ghraib prison incident with the CIA’s program of detention and interrogation of HVDs, these acts were not related. In fact, the Abu Ghraib incident was not authorized by the CIA and was directly linked to the actions of a few Army Reservists in the 372nd Military Police Company, which is garrisoned in Cumberland, Maryland.[46] Several of these enlisted personnel were court-martialed and sentenced to prison sentences, demotions, and discharges.[47] Along with the enlisted personnel, several officers were reprimanded, demoted, or discharged for lack of oversight in the Abu Ghraib incidents.[48]

hvdsTo appreciate the significance and application of EITs, it is helpful to realize that HVDs were not low-level foot soldiers in the War on Terror. Instead, they were high-level leaders and/or well-connected persons who either planned, implemented, or knew of past terrorist attacks; many had planned or knew of plans for future terrorist attacks. The resumes of some of the more notable HVDs who were subjected to EITs will place the program in its rightful context.

            A. Abu Zubaydah

In a draft psychological assessment of Abu Zubaydah faxed to John Yoo, former Deputy of the Office of Legal Counsel, from the CIA, significant background information alleges that Zubaydah was far more than a low-level foot soldier.[49] The draft memo describes him as a former courier who climbed the ranks of Al-Qa’eda to become the third or fourth man from the top.[50] Furthermore, it is believed that he was involved in major terrorist operations such as the millennium plot (2000), the Paris embassy (2001), and a planner of the 9/11 attacks.[51] He served as a senior advisor to Usama Bin Laden, managed terror training camps, and assisted in the logistical aspects of the terror organization.[52] Furthermore, it was believed that Zubaydah wrote Al-Qa’eda’s manual on resistance techniques during interrogations.[53]

According to the Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (SSCI Study), Zubaydah was waterboarded 2-4 times a day, with multiple iterations of watering cycle during each application.[54] This went on for approximately twenty days, in what was referred to as an “aggressive phase of interrogations.”[55] The rationale for the continued use of EITs on Zubaydah is recorded in a memo from John Bybee, former Assistant Attorney General, to John Rizzo, former Acting General Counsel of the Central Intelligence Agency. Bybee writes,

The interrogation team is certain that he [Zubaydah] has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, your intelligence indicates that there is currently a level of “chatter” equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an “increased pressure phase.”[56]

B. Al-Nashiri

Al-Nashiri is a Saudi Arabian citizen alleged to be the mastermind of the bombing of USS Cole and other maritime terrorist attacks.[57] He is alleged to have headed Al-Qa’eda operations in the Persian Gulf and the Gulf states prior to his capture in November 2002 by the CIA’s Special Activities Division.[58]

C. Khalid Sheikh Mohammed (KSM)

He was named as “the principal architect of the 9/11 attacks” in the 9/11 Commission Report.[59] The Report continues by stating,

“No one exemplifies the model of the terrorist entrepreneur more clearly than Khalid Sheikh Mohammed, the principal architect of the 9/11 attacks. KSM followed a rather tortuous path to his eventual membership in Al-Qa’eda. Highly educated and equally comfortable in a government office or a terrorist safehouse, KSM applied his imagination, technical aptitude, and managerial skills to hatching and planning an extraordinary array of terrorist schemes. These ideas included conventional car bombing, political assassination, aircraft bombing, hijacking, reservoir poisoning, and, ultimately, the use of aircraft as missiles guided by suicide operatives.”[60]

Later the Report explains the significant connections that KSM had to Usama Bin Laden and his place among Al-Qa’eda leadership.[61]

Far from low-level Jihadis, these three examples of HVDs, with KSM as the most notable example, demonstrate that those who were subjected to EITs were high-level personnel in Al-Qa’eda and the terror network.

IV. The Legality of Enhanced Interrogation Techniques Under International Law

Did the use of EITs violate international law under the Convention Against Torture (CAT)?[62] International prohibition against terror is jus cogens, that is, it is the norm of international law.[63] The CAT defines “torture” as

CAT toruture“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such proposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person in an official capacity.”[64]

The CAT distinguishes between torture and other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1. The CAT thus treats torture as an extreme form of cruel, inhuman, or degrading treatment.”[65] Moreover, it is important to understand that the United States has determined what aspects of CAT would apply to its government and citizens by enacting 18 U.S.C. §2340. Thus, the CAT applies to the United States only in accordance with the reservations, declarations, and understandings articulated by the United States.[66] Accordingly, the United States prohibits torture only as proscribed in 18 U.S.C. § 2340; and prohibits otherwise ‘cruel, inhumane, and degrading’ treatment would violate the English Amendment prohibition against cruel and unusual punishment or the Fifth and Fourteenth Amendment prohibitions against conduct that ‘shocks the conscience.’”[67]

V. The Legality of Enhanced Interrogation Techniques Under the Torture Act (18 U.S.C. §2340)

Under United States law, when has someone committed torture? To establish the crime of torture, a prosecutor must prove the elements set forth in the Torture Act 18 U.S.C. § 2340[68] The elements are:

(1) the torture occurred outside the United States;

(2) the defendant acted under the color of law;

(3) the victim was within the defendant’s custody or physical control;

(4) the defendant specifically intended to cause severe mental or physical pain or      suffering; and

(5) the act inflicted severe mental or physical pain or suffering (emphasis added).

EIT specific intentUnder 18 U.S.C. §2340, torture is defined in a significantly different manner from its definition in the CAT.[69] That is, the Torture Act prohibits conduct “specifically intended to inflict severe physical or mental pain or suffering.”[70] Therefore, to evaluate the legality of EITs under the Torture Act, one must define both “specific intent” and “severe” as used in the statute.

A. 18 U.S.C. §2340 Specific Intent Requirement

In a memo to John Rizzo, John Yoo, former Deputy Assistant Attorney General, explained that in order “to establish that an individual has acted with the specific intent to inflict severe mental pain or suffering, an individual must act with specific intent, i.e., with the express purpose, of causing prolonged mental harm in order for the use of any of the predicate acts to constitute torture.”[71] Since the interrogator must act with the express purpose of causing prolonged harm, either physical or mental, it is important to reconsider the purpose of EITs. As already expressed, the primary purpose of the use of EITs was to gather actionable intelligence and not to inflict severe physical or mental harm. The physical and mental pain associated with the employment of EITs had a psychological purpose. That is, the short-term pain was used to create an environment wherein the detainee felt like he was not in control, and one in which he was completely dependent upon his interrogators. Although the interrogators sometimes used a high degree of physical pain in order to create an environment of psychological dependence, so long as their express purpose was not to inflict severe pain (defined below) to gather intelligence, and instead only to inflict temporal degrees of physical and mental pain, they had not satisfied the element of specific intent under §2340.

Mr. Yoo clarifies a potential defense to the specific intent requirement in situations when the actions of the interrogator caused unintended consequences. He writes, “Specific intent may be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture.”[72] Although this defense may be palatable if one believes that EITs were legal, it may be difficult to separate the infliction of high degrees of physical and mental pain from the potential long-term results of these actions. However, the interrogators were not acting without protocols and other professionals (i.e., agency directors, medical staff) providing approval and/or oversight. Mr. Yoo clarifies that if the interrogator acted in reliance on the professional advice he received and unintended consequences resulted from the interrogator’s employment of physical or mental harm, then he could still argue a good faith defense. He writes, “If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any action undertaken relying on that advice would have been undertaken in good faith.”[73] Although this defense is not without its challenges, it does demonstrate how difficult it would be to establish the element of specific intent.

By requiring “specific intent” under §2340, the calculus for answering the question of the legality of EITs is substantially affected. An interrogator who acted within the prescribed protocols, received authorization from the proper directors, adhered to the guidance and advise of medical personnel, and did not intend to cause lasting mental or physical pain would not have satisfied the element of specific intent under §2340.

B. 18 U.S.C. §2340 Severe Physical or Mental Pain and Suffering Requirement

The amount of pain of a person can withstand will vary widely based on any number of factors. Therefore, what may be considered severe pain by one person may be considered light by others. This subjective standard creates a number of challenges when interpreting the word “severe” in 18 U.S.C. §2340. Who decides what is severe and how is that standard measured when applied to different persons?

Before answering the interpretive question concerning one word in a statute, it is prudent to consider the larger statutory context in which the word is used. Under 18 U.S.C. §2340(2) “severe mental pain or suffering” is defined as “the prolonged mental harm caused by or resulting from:

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat to another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.[74]

Although that statute is clear in prohibiting the threat of or actual use of severe physical or mental pain on a person or a third person, it did not define “severe”[75] In a memo to Alberto Gonzales, former Attorney General of the United States, Jay Bybee, former Assistant Attorney General, provided an interpretive road map to determine the meaning of the word “severe.”[76] Bybee argues that in examining the meaning of “severe,” the text is the starting point. Since the text does not define the word, Bybee provides dictionary definitions of the word “severe” and examples of statutes wherein the word “severe” is used in relation to emergency medical conditions.[77] The statute does, however, require proof of “prolonged mental harm,” which Bybee also attempts to define by the dictionary definition of the word “prolonged,” as well as references to psychiatric and psychological authorities.[78] He suggests that the development of a mental disorder such as posttraumatic stress disorder, which can last for months or even years, or even chronic depression, which can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement.[79] This interpretation of severe creates a significantly high threshold to establish that an act by an interrogator constituted torture.

Bybee summarized his legal argument by providing two key points for evaluating the severe requirement of §2340. First, he writes that a victim must experience pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant bodily function will likely result.[80] Second, if the pain or suffering is psychological, that suffering must result from one of the acts set forth in the statue, and these acts must cause long-term mental harm.[81] Thus, he contends, “reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts.”[82]

Under this interpretation, the bar for acts by interrogators constituting torture is extremely high. Thus, if protocols and procedures were followed and he or she did not specifically intend to cause severe physical pain or prolonged mental harm then it would be extremely difficult to prove that the interrogator violated §2340.

VI. Al-Qa’eda and Taliban Detainees and P.O.W. Status Under the Geneva Conventions

Should Al-Qa’eda and/or Taliban detainees be classified as P.O.W.s under the Geneva Conventions?[83] This question is foundational for accessing the use of EITs on detainees. First, what is required for a person to be considered a P.O.W.? Under Geneva Article III, to qualify as P.O.W.s, militia must satisfy four conditions:

1) They must be part of a military hierarchy;

2) They must wear uniforms or other distinctive signs visible at a distance;

3) They must carry arms openly; and

4) They . . . must conduct their operations in accordance with the laws and customs of war.[84]

pow genevea.jpgIn a 2002 Memo from then-President George W. Bush to the Vice President, Secretary of Defense, et al., the President stated that neither the Taliban nor Al-Qa’eda detainees were entitled to P.O.W. status.[85] Since Al-Qa’eda is a terrorist group and was not a state party to the Geneva Convention, its members are not entitled to the protections of the Convention.[86] However, Afghanistan was a party to the Geneva Convention, and although there are grounds to conclude that it was a failed nation-state, the President declined to determine that the Taliban were not covered by the treaty.[87] He did, however, make it clear that the Taliban detainees were not entitled to P.O.W. status under the terms of the Convention because they did not qualify according to the Conventions standards.[88]

In order to qualify as P.O.W.s under Article 4 of the Convention, the Taliban must have fit into the four categories listed above. First, the Taliban did function as a recognizable and uniform military hierarchy. Instead, they were a loosely connected cohort of tribes and foreign jihadis. Moreover, they did not wear uniforms or other distinctive signs. The Taliban did not dress like soldiers; they dressed like civilians. Likewise, they didn’t carry arms openly. Depending on the circumstances, the Taliban would conceal their weapons in order to evade conflict or set up ambushes. Finally, the Taliban did not conduct their operations in accordance with the laws and customs of war. Instead, they functioned as a terrorist organization to such a degree that it was difficult to distinguish them from Al-Qa’eda, particularly in Afghanistan. Therefore, the Taliban were considered to be “unlawful combatants,” which disqualified them from P.O.W. status.[89]

pow statusProviding either Al-Qa’eda or Taliban detainees P.O.W. status would have (1) legitimized the terror organizations, (2) undermined the purposes of the Geneva Conventions, and (3) substantially limited the scope of the CIA’s interrogation techniques. First, neither Al-Qa’eda nor the Taliban were parties to the Convention. Although Afghanistan was a party, the Taliban were not the official army of the Afghanistan government. To provide either terror group the protections afforded in the Convention would have legitimized them as pseudo-nation-states. Second, the protections of Geneva’s P.O.W. status was meant to motivate participating nations to conduct themselves in accord with the convention. It would undermine the Conventions if a terrorist group that doesn’t adhere to the treaty and tortures and/or murders its prisoners receives the protections of P.O.W. status for its captured members. Finally, the CIA’s ability to obtain actionable intelligence from HVDs within these groups would have been severely limited. The Army Field Manual, which contains the SITs, was not classified. Instead, it was widely available and accessible to terrorist. This access allowed them to prepare for such interrogations, thus limiting the potential for intelligence gathering from HVDs.

VII. Conclusion: Enhanced Interrogations Techniques in the Ongoing War on Terror

1. Were EITs Effective?

In response to the claim that EITs don’t work because those subjected to them will simply make up information in order to end the ordeal, Michael Hayden and Michael Mukasey, write that this understanding of the effectiveness of EITs is “an ignorant view of how interrogations are conducted and belied by both experience and common sense.”[90] They write, “If coercive interrogations had been administered to obtain confessions, one might understand this argument. . . But confessions aren’t the point. Intelligence is.” They continue by explaining how the interrogator uses questions that he already knows the answer to and then when he gets the correct answers proceeds to what is unknown.[91] This synopsis provides both a rebuttal to the alleged ineffectiveness of EITs and demonstrates a grave misunderstanding of the purposes and use of EITs in extracting, gathering, and collaborating intelligence.[92]eits purposes

According to the CIA, information provided by Zubaydah resulted in 766 disseminated intelligence reports. Furthermore, the CIA claims that Zubaydah provided information on Al-Qa’eda activities, plans, capabilities, and relationships, in addition to information on its leadership structure, including personalities, decision-making processes, training, and tactics.[93] Intelligence obtained from Zubaydah helped lead to the identification of Jose Padilla and Binyam Muhammed—operatives who had plans to detonate a uranium-topped dirty bomb in either Washington D.C. or New York City.[94] Additionally, the interrogations of Al-Nashiri produced 145 intelligence reports.[95] Khalid Sheikh Mohammed provided information that helped lead to the arrests of terrorists including Sayfullah Parcha and his son Uzair Parcha, businessmen who KSM planned to use to smuggle explosives into the United States.[96] KSM also provided information on Saleh Almari, a sleeper operative in New York, and Majid Khan, an operative who could enter the United States and was tasked to research attacks . . . [redacted]. KSM’s information also provided information on Iyman Faris.[97]

It is suggested that intel obtained through the use of EITs has been rebutted by the testimony of KSM, who claimed that he gave false or misleading information.[98] This testimony, given by a known terrorist and the principal architect of the 9/11 attacks, has become a primary source for those who seek to establish the ineffectiveness of EITs.[99] Is it possible that this high-ranking, Al-Qa’eda terrorist is continuing to use deception to undermine U.S. intelligence-gathering methods? Unlike those who view KSM’s later comments about the reliability of his information, those who have studied fundamentalist Islam, particularly the Jihadi strand known as Wahhabism, would not view such an avowed Jihadist as a reliable source for assessing the effectiveness of U.S. intelligence gathering.[100] In Wahhabism, the doctrine of Taqiyya permits a Muslim to deceive or lie to a non-Muslim to advance Islam.[101] Therefore, it is both journalistic overreach and extremely naive to rely upon such an unreliable source when assessing the effectiveness of the CIA’s interrogation program.

Although there is significant debate as to the effectiveness of EITs, particularly that information obtained was already known or provided prior, it is hard to fully appreciate the amount of intel that was collaborated and/or collected through the use of EITs.[102] To provide a comprehensive analysis of the effectiveness of EITs in relation to intelligence gathering, one would have to develop a matrix or paradigm by which the massive amounts of intelligence could be assessed in relation to what was collaborated or obtained through the use of EITs. This would be a nearly impossible task. According to the Officer of Inspector General’s report, the overall program was successful because the intelligence collected (1) enabled the identification and capture of other terrorists; (2) warned of terrorist plots planned for the United States; (3) helped to verify information from other detainees; and (4) provided information about Al-Qa’eda operations.[103]

2. Does the United States Still Need to Have the Ability to Use EITs in the Interrogation of HVDs?

Since the declassification of opinions of the Justice Department’s Office of Legal Counsel (OLC) by the Obama Administration, EITs employed by the CIA and other U.S. Government entities has been made public.[104] This public disclosure essentially assures that terrorist organizations are aware of, and training their members to respond to, the techniques permitted by and used by the United States.[105] Since the classified information about EITs was released to the public, terrorist groups can now train and prepare to resist such techniques in the same way that they previously trained adherents to resist SITs. Therefore, one could argue that EITs would be either useless or less effective today. That is, terrorist will be better prepared to resists such tactics and therefore we must forgo using EITs. Conversely, one may argue that intelligence gathering should involve the use of techniques even more “enhanced” in interrogating HVDs. That is, different techniques from those previously employed and now published. Either way, the release of the classified information requires a change of tactics. However, this modification in interrogation techniques may only require a more exacting use of EITs. A very narrow use of EITs that is both limited and targeted in scope could still be an effective tool in intelligence gathering from uncooperative HVDs.

A Limited List of Enhanced Interrogation Techniques

Before suggesting there exists a place or scenario in contemporary interrogation techniques for EITs, it essential that one distinguish between EITs and the sadistic behaviors engaged in by only a handful of military personal at Abu Ghraib prison.[106] The incident at Abu Ghraib prison does not reflect or portray the authorized use of EITs on a few hardened terrorists, nor does it reflect legitimate intelligence gathering at any level.[107] Thus, the reader must take care not conflate the illegal and rogue acts committed at Abu Ghraib with the authorized use of EITs by professionally-trained CIA interrogators.

Although most of the authorized EITs listed are not likely to elicit significant outcry, both waterboarding and confining detainees in tight places, such as coffins, may shock the conscience of the average layman, which may cause one to hesitate before suggesting they remain on an approved list. Yet, used properly, both can be an effective tool in gathering intelligence from HVDs. Thus, neither should be removed outright from an approved list. However, the application of such techniques should be limited and used only in the most extreme circumstances. Although such circumstances would need to be clearly defined, one can imagine the proverbial “ticking time-bomb” scenario as a situation in which the application of EITs may be justified. Further limitations, such as shortening the length of time in which HVDs were subjected to EITs or lengthening the time between employment of EITs, could create additional guideposts for the continued use of EITs. Although neither suggestion is meant as the “end-all-be-all” for narrowing the application of EITs, they are suggestions meant to create a dialogue on what, if any, ways EITs may be used in future interrogations of HVDs.

Additionally, a prescribed progression of EITs may be employed, reserving the highest level for the most hardened HVDs. For example, by starting with those techniques that appear on their face to be less egregious (i.e., facial hold, insult slap, or attention grasp) could be used before progressing to the next level of techniques (i.e., wall standing, stress positions). These techniques coupled with sleep deprivation could potentially demonstrate that resistance would be met with continued, yet temporal, physical and psychological pain. This approach would reserve the most strenuous techniques (i.e. confinement in tight spaces, waterboarding) for extreme circumstances where all other EITs have consistently failed to dislodge the detainee’s expectations of how he would be treated and create an environment of dependency on the part of the detainee.

A Targeted Employment of Enhanced Interrogation Techniques

The Army’s Field Manual is a sufficient tool for the average soldier who is tasked with the routine questioning of prisoners of war or low-level enemy combatants. However, the limits imposed by the Army Field Manual will likely hinder intelligence gathering by trained personnel who are attempting to gather and/or collaborate actionable information from HVDs, especially the HVDs who are familiar with the Army Field Manual and have been trained to resist its prescribed tactics.[108] Thus, a targeted employment of EITs would be the only possible way to employ them in the future. EITs would only be used on terrorists who qualify as HVDs. This author would suggest that identifying a detainee as an HVD should require the signature of the President of the United States. In order for the President to receive a recommendation, the recommendation must be signed by the Director of Home Land Security, Director of the Central Intelligence Agency, The Secretary of Defense, and The Attorney General. Prior to these top executive branch officials making such a collaborative recommendation, there must be significant intelligence that the specific detainee has actionable intelligence about a plan to attack the United States or its allies, has knowledge of an imminent attack, or has information about the location of the planners or leadership of the group behind the potential or imminent attack. This enhanced approval process may potentially hinder or slow the use of EITs on an HVD with actionable intelligence, but this process, or one similar to it, would ensure that EITs are only used against a very limited number of persons. That is, HVDs who pose the greatest threat to the United States and its allies.

Although it is unlikely that EITs will be authorized in future CIA interrogations, it would be inaccurate to classify the use of EITs on HVDs post-9/11 as illegal. As this article has demonstrated, authorized EITs were legal under the United States interpretation of the CAT and under the U.S. Law, 18 U.S.C. §2340. Furthermore, detainees who are or have been members of either Al-Qa’eda or the Taliban did not qualify for P.O.W. status under the Geneva Conventions and were rightly classified as “unlawful combatants.” Finally, by eliminating the use of EITs in the ongoing war on terror, the United States has truly tied its hands and may face grave consequences as it continues to fight an enemy who is bent on its destruction.

were eits legal

Endnotes:

[1] See English Standard Bible, Genesis, Chapter 3, (Wheaton, IL: Crossway Publishers), 2001.
[2] Francis, Thomas W., The Identity of the Serpent in Genesis Chapter 3, Unpublished Doctoral Article, May, 2014.
[3] Rav Yehuda Rock, Examining Witnesses, in the Torah and in Halakha, https://www.etzion.org.il/en/examining-witnesses-torah-and-halakha (last visited March 30, 2019).
[4] Cullen Murphy, The Inquisition: A Model for Modern Interrogators, https://www.npr.org/2012/01/23/145512271/

the-inquisition-a-model-for-modern-interrogators (last visited March 30, 2019).
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11]Peter T. Leeson, Why the trial by ordeal was actually an effective test of guilt, https://aeon.co/ideas/why-the-trial-by-ordeal-was-actually-an-effective-test-of-guilt (last visited March 29, 2019).
[12] Id.
[13] Id.
[14] Id.
[15] Duhaime’s Law Dictionary, Trial by Ordeal Definition, http://www.duhaime.org/ LegalDictionary/T/TrialbyOrdeal.aspx  (last visited April 13, 2019).
[16] Id.
[17] Brown v. Mississippi, 297 U.S. 278 (1936).
[18] Id.
[19] Id.
[20] Id.
[21] 18 U.S.C. § 2340 (2004)
[22] EXECUTIVE ORDER 13491 ENSURING LAWFUL INTERROGATIONS (January 22, 2009).
[23] David Brooks, “Shields and Brooks on the CIA interrogation report, spending bill sticking points,” PBS NEWS HOUR, (December 12, 2014. https://www.pbs.org/newshour/show/shields-brooks-cia-interrogation-report-spending-bill-sticking-points) (Last visited April 2, 2019)
[24] By Chris McGreal, Former senior Bush official on torture: ‘I think what they did was wrong,’ THE GUARDIAN, (April 5, 2012 https://www.theguardian.com/world/2012/apr/05/bush-official-torture-condoleezza-rice.) (Zelikow told the Guardian in an email exchange that while he did not use the word torture in the memo, he believes that is what the CIA was using. “I do regard the interrogation practices and conditions of confinement, taken together, as torture – in the ordinary layman’s use of this term. But … ‘torture’ is also a term with a carefully worded legal meaning and definition. So, I tend to avoid talking about ‘torture’ because it would appear, I’m accusing officials of criminal activity, which I’m not sure was the case,” he said.)
[25] Adam Goldman, New poll finds majority of Americans think torture was justified after 9/11 attacks. (December 16, 2014 https://www.washingtonpost.com/world/national-security/new-poll-finds-majority-of-americans-believe-torture-justified-after-911-attacks/2014/12/16/f6ee1208-847c-11e4-9534-f79a23c40e6c_story.html?noredirect=on&utm_term=.df2a180511d4.) (“By a margin of almost 2 to1 – 59 percent to 31 percent – those interviewed said that they support the CIA’s brutal methods, with the vast majority of supporters saying that they produced valuable intelligence.”); Also, Somini Sengupta, Torture Can Be Useful, Nearly Half of Americans in Poll Say, https://www.nytimes.com/2016/12/05/world/americas/torture-can-be-useful-nearly-half-of-americans-in-poll-say.html (“nearly half of Americans in a global survey said they believed an enemy fighter could be tortured to extract information, according to results released Monday.”) (last visited April 1, 2019).
[26] Anne Daugherty Miles, Perspectives on Enhanced Interrogation Techniques, January 8, 2016 quoting “Guidelines on Interrogations Conducted Pursuant to the [redacted]” January 28, 2003.
[27] Id., at 24.
[28] Id., at 22; IG Special Review, p. 30; The IG Special Review Lists seven techniques that it considered to be standard: (1) isolation, (2) sleep deprivation not exceed 72 hours, (3) reduced caloric intake, (4) deprivation of reading material, (5) loud music or white noise, (6) diapers for limited periods, and (7) moderate psychological pressure.
[29] Id., at 24; Guidelines on Interrogations Conducted Pursuant to the [redacted]. APPROVALS REQUIRED. “Whenever feasible, advance approval is required for the use of Standard Techniques by an interrogation team.  In all instances, their use shall be documented in cable traffic, Prior approval in writing (e.g., by written memorandum or in cable traffic) from the Director, DCI Counterterrorist Center, with the concurrence of the Chief, CTC Legal Group, is required for the use of any Enhanced Technique(s), and may be provided only where D/CTC has determined that (a) the specific detainee is believed to possess information about risks to the citizens of the United States or other nations, (b) the use of the Enhanced Technique(s) is appropriate in order to obtain that information, (c) appropriate medical and psychological personnel have concluded that the use of the Enhanced Technique(s) is no expected to produce ‘severe physical or mental pain or suffering,’ and (d) the personnel authorized to employ the Enhanced Technique(s) have completed the attached Acknowledgement. Nothing these Guidelines alters the right to act in self-defense.”
[30] Zero Dark Thirty, https://www.imdb.com/title/tt1790885/ (last visited April 2, 2019); For an abbreviated clip highlighting alleged waterboarding, see https://www.youtube.com/watch?v=EEX8WeZU2wA (last visited April 2, 2019).
[31] Perspectives on Enhanced Interrogation Techniques, at 25.; These techniques were, largely, adopted from the United States Military’s Survival, Evasion, Resistance, and Escape (SERE) training. The SERE program was originally designed to help U.S. military personnel to resist interrogation techniques if they were captured.
[32] See CIA tactics: What is enhanced interrogation? (December 10, 2014 https://www.bbc.com/news/world-us-canada-11723189); See also, Larry Siems, Inside CIA’s black site torture room. The Guardian. (October 9, 2017).
[33] Steven Bradbury, Principal Deputy Assistant Attorney General, Application of the War Crimes Act, Detainee Treatment Act, and the Common Article 3 of the Geneva Conventions to Certain Techniques that may be used by the CIA in the interrogation of HV Al-Qa’eda Detainees,” Memorandum to John Rizzo, Acting General Council, CIA, July 20, 2007, at 5-6.
[34] Id.
[35] Id.
[36] Memorandum to John Rizzo, July 20, 2007, at 3.
[37] Id. at 5.
[38] Id. at 6.
[39] Id. at 3.
[40] Id. at 5.
[41] Department of Defense, List of Individuals Detained by the Department of Defense at Guantanamo Bay, Cuba from January 2002 through May 15, 2006, THE AGE, (March 16, 2006 https://www.theage.com.au/world/us-names-759-guantanamo-inmates-20060516-gdnjz8.html; https://web.archive.org/web/20100228102504/http://www.dod.mil/pubs/foi/detainees/detaineesFOIArelease15May2006.pdf (last visited April 10, 2019).
[42] Stephen Dycus, Arthur L. Berny, William C. Banks, et al., National Security Law, at 994.
[43] Memorandum to John Rizzo, July 20, 2007, at 5-6.
[44] Id.
[45] Id.
[46] Iraq Prison Abuse Scandal Fast Facts, CNN (updated March 4, 2019 https://www.cnn.com/2013/10/30/

world/meast/iraq-prison-abuse-scandal-fast-facts/index.html)
[47] Id.
[48] Id.
[49] John Yoo, Draft Memo from CIA on Abu Zubaydah, at 1.
[50] Id.
[51] Id.
[52] Id.
[53] Id.
[54] National Security Law, at p. 997.
[55] Id.
[56] Jay Bybee, Memo to John Rizzo, August 1, 2002, at 2.
[57] National Security Law, at 997.
[58] Id.
[59] National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report. Executive Summary, 2004, at 436.
[60] Id. at 145.
[61] Id. at 145-150.
[62] National Security Law, at 1002, (“There are 144 parties to the Convention Against Torture, representing approximately 75% of the member states of the United Nations.”)
[63] United States v. Charles Emmanuel, United States District Court, Southern District of Florida, 2007 2007 WL 2002452 (quoted in Id. at 1000-1001).
[64] UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1(1), 10 December 1984, United Nations, Treaty Series, vol. 1465, https://www.refworld.org/docid/3ae6b3a94.html
[65] Daniel Levin, Definition of Torture Memorandum Opinion for the Deputy Attorney General, at 302-303, December 30, 2004.
[66] See John Yoo’s Letter to Attorney General, Alberto Gonzales, August 1, 20012, for overview of the interpretation and application of CAT under U.S. Law.
[67] Scott Walker, Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa’ida Personnel, Draft Bullet Points Sent to John Yoo, April 28, 2003.
[68] John Yoo’s Letter to John Rizzo, July 13, 2002
[69] National Security Law, at 1005.
[70] 18 U.S.C. §2340(1).
[71] John Yoo Letter to John Rizzo, July 13, 2002
[72] Id.
[73] Id.
[74] 18 U.S.C. §2340(2).
[75] John Bybee, Memorandum for Alberto Gonzales, Counsel to the President, August 1, 2002, at 5.
[76] Id. at 5.
[77] Id. at 5-6.
[78] Id. at 6.
[79] Id. at 7.
[80] Id. at 13.
[81] Id.
[82] Id.; See Daniel Levin’s Memo, December 30, 2004, for an additional interpretation of §2340 in relation to the definition of torture.  Levin writes, “This opinion concludes that “severe” pain under the statute is not limited to “excruciating or agonizing” pain or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death,” at 1.
[83] Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/7c4d08d9b287a42141256739003e63bb/6fef854a3517b75ac125641e004a9e68
[84] President George W. Bush, Humane Treatment of Al-Qa’eda and Taliban Detainees, Status and Treatment of Detainees at Guantanamo, February 7, 2002, at 1-2.
[85] Id. at 1.
[86] Id., Status and Treatment of Detainees at Guantanamo, at 2.
[87] Id.
[88] Id.
[89] Id.
[90] Michael Hayden and Michael Mukasey, The President Ties His Own Hands on Terror, THE WALL STREET JOURNAL, April 17, 2009, at A13.
[91] Id.
[92] Id.
[93] Id.
[94] Office of the Inspector General, Special Review: Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), Report no. 2003-7123-IG, May 7, 2004, p. at http://nsarchive.gwu.edu/ torturingdemocracy/documents/20040507.pdf., p. 87
[95] Id.
[96] Id.
[97] Id.
[98] See SSCI p. 216ff
[99] See Senate Report on Cia Torture, HUMAN RIGHTS FIRST, https://www.humanrightsfirst.org/senate-report-cia-torture/khalid-sheikh-mohammad-ksm (last visited April 9, 2019).
[100] See, Francis, Thomas W., A Synopsis of the Development, Role, and Influence of the Hadith in Islamic Theology and on the Doctrine of Jihad, Unpublished Doctoral Article, May 1, 2013.
[101] This doctrine is loosely established by Jihadi interpretation of verses from the Qu’ran such as 3:29, 3:54, 9:3, 9:29, to name a few.
[102] See Report of the Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program; Senate Report 113-288, December 9, 2014; The SSCI’s Minority Report at 520-672.
[103] IG Special Review, at 85-86.
[104] The President Ties His Own Hands on Terror, at A13.
[105] Id.
[106] Id.
[107] Id.
[108] Id.

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