ON THE LEGALITY AND PRACTICALITY OF U.S. INTERROGATION PRACTICES

An Analysis of the Treatment of Detainees at Guantanamo Bay
By Rick Relinger

The United States has traditionally claimed its place as the pinnacle of democracy and justice in the world. This powerful rhetoric was evoked not only to garner public support for the War on Terror, but also to justify the treatment of individuals taken captive by U.S. military personnel during this war. The Bush Administration asserts that the capture, imprisonment and interrogation of these alleged combatants will bring democracy and justice to the Middle East and protect America from these freedom-hating “terrorists.” In an effort to obtain pertinent information regarding the War on Terror, top officials in the executive branch began to push the legal limits of interrogation methods. The self-proclaimed “War Counsel,” a group of top attorneys in the Bush Administration, produced a series of legal interpretations known as the torture memos in an effort to absolve responsibility for methods that could potentially warrant indictment for war crimes. Hence, the purpose of this research paper is to investigate the legal and practical justifications for the executive authorization of interrogation practices at the Guantanamo Bay Naval Base, with regard to international law and human rights. The paper will open with a literature review of the scholarly debate regarding both the legality and the practicality of the historical use of such interrogation methods. Next, it will analyze whether the physical and psychological treatment of detainees at Guantanamo constitutes torture and if those interrogation techniques violate Article 7 of the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture. Lastly, the paper will investigate the necessity and effectiveness of the specific authorized interrogation methods to extract reliable, lifesaving intelligence. Upon examination, the deliberately deceptive legal and practical justifications for the interrogation methods authorized by the Bush Administration are fundamentally flawed. Therefore, the interrogation techniques used on detainees at Guantanamo Bay violate international law under Article 7 of the ICCPR and the UNCAT and inherently elicit false intelligence and fabricated confessions.

Scholarly literature regarding the interrogation methods employed at Guantanamo Bay centers around the legal and practical explanations of such practices. Yet, much of the debate regarding the consequences of these techniques derives from past international conflicts due to the contemporary nature of this topic. The legal discourse is focused on whether specific interrogation methods justify the classification of torture. On one side of the question is the use of water-boarding by the United States military during the Vietnam War. Although the military dismissed soldiers allegedly involved in its use, water-boarding was not considered torture and was commonly used by American personnel against North Vietnamese soldiers (Pincus). However, the legality of this method of interrogation is potentially at odds with the ICCPR and the UNCAT. Conversely, the same interrogation technique was legally regarded as torture during WWII. In 1947, the United States charged Yukio Asano, a Japanese soldier, with war crimes for his involvement in water-boarding and beating an American citizen. According to the ruling, the acts of water-boarding and physically beating a prisoner qualified as torture and resulted in Asano’s prosecution for war crimes (Lee). In comparison to the case in Vietnam, this legal categorization appears to be more consistent with current international law. This debate over the legality of employing specific interrogation methods is crucial in the analysis of this case study.

Scholarly discourse concerning practicality disputes whether the specific interrogation techniques and torture effectively elicit reliable intelligence. Scholars who defend the value of torture often point to its successful use by the French in 1957 during the Algerian War. Yet, this contention ignores the fact that the intelligence provided by the tortured detainee had already been obtained by the French months earlier (Rejali). On the contrary, many of the interrogation techniques currently used at Guantanamo date back to the 1963 C.I.A. manual titled “KUBARK Counterintelligence Interrogation.” The manual states that these coercive interrogations usually yield unreliable intelligence and therefore should only be used as a final resort (Hooks). The C.I.A.’s recognition that torture is not an effective solution to elicit accurate information better reflects the results of interrogations at Guantanamo. This question over the practicality of using torture methods to collect intelligence is also central to this case. Hence, the research conducted for this paper continues within this historical framework to examine the legal and practical justifications for the current interrogation methods practiced at the Guantanamo Bay Naval Base.

The physical treatment of detainees during interrogations at the U.S. prison camp in Guantanamo Bay is characterized as purposefully causing intense pain to extract information. The intention of this treatment is a direct violation of Article 7 of the International Covenant on Civil and Political Rights. Article 7, which was ratified by the United States in 1992, declares that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (International). The Bush Administration placed intense pressure on interrogators to obtain pertinent intelligence from detainees and endorsed specific practices to extend the legal limits of questioning methods and treatment of prisoners. Consequently, individuals imprisoned at Guantanamo Bay are subjected to a variety of controversial interrogation techniques at the hands of U.S. military personnel. In interrogations at the facility, detainees are victims of beatings, stress positions, water-boarding, short-shackling, and exposure to extreme temperatures. Moreover, they are intentionally denied vital medical treatment, and are sexually abused and raped. This treatment characterizes torture as defined by Article 1 of the UN Convention Against Torture: “torture means any act by which severe pain or suffering…is intentionally inflicted on a person for such purposes as obtaining from him…information or a confession” (Convention). The interrogation methods used at the detention facility, from beating to extreme stress positions, are authorized by the Bush Administration with the intent of exposing prisoners to extreme suffering. Numerous humanitarian organizations have verified the objective of harsh interrogation techniques: “the Red Cross has concluded that the U.S. has been intentionally using…physical coercion ‘tantamount to torture’ on prisoners at Guantanamo Bay” (Goodman). The purpose of these methods was admittedly approved with the objective of extracting specific intelligence. The intent of these techniques is described by Major General Michael Dunlavey in a request for approval of these harsh methods: “I believe the methods and techniques…will enhance our efforts to extract additional information” (Dunlavey). As acknowledged by those involved in their request and approval, the specific interrogation techniques were designed to inflict suffering on the detainees and to subsequently acquire information and confessions. Thus, the admitted purposes of the physical methods used to interrogate prisoners, approved by the “War Counsel” and President Bush, qualify as torture under the UN Convention Against Torture and therefore violate Article 7 of the ICCPR.

The use of torture and violations of Article 7 at the Guantanamo Bay prison facility are not limited to the physical mistreatment of detainees, but also include psychological abuse. Specific techniques employed against prisoners include solitary confinement, extreme exposure to and manipulation of light and sound, extensive sleep deprivation, intimidation with dogs and snakes, threats to kill family members, abuse of the detainee’s religious beliefs, and sexual humiliation. The cumulative effects of these methods result in the experience of extreme suffering with the intent of extracting relevant intelligence: “extreme sensory deprivation…[and] extended isolation contributed to enduring psychiatric and mental problems of the prisoners…that would break down the prisoner’s psychological defenses” (Benjamin). By employing these techniques over extensive periods of time, interrogators expect to cause lasting psychological pain that would coerce detainees to provide relevant intelligence or confess to alleged crimes. The effects and intent of these conditions clearly fall within the definition of torture in the UN Convention Against Torture. Therefore, these psychological techniques, explicitly approved by the Bush Administration, violate Article 7 of the legally binding ICCPR.

Despite acknowledging the intention of causing severe pain to obtain intelligence, the Bush Administration claims that their interrogation methods are not tantamount to torture. Upon examining the series of legal opinions produced by the “War Counsel,” it is apparent that the White House alleges that the techniques it approves are legally permitted. These memos discuss the extent to which detainees can be physically and psychologically abused without being considered torture. By avoiding the designation of approving torture, the Bush Administration feels that the U.S. military can legally mistreat prisoners to extract intelligence. In a memo authored by John Yoo, the Justice Department attorney claims that “while many of these techniques…amount to cruel, inhuman or degrading treatment, they do not produce pain…of the necessary intensity to meet the definition of torture…we conclude that there is a wide range of such techniques” (Yoo). According to Yoo and the executive branch, many of the interrogation methods may be inhuman and brutal but are not equivalent to legal definitions of torture. For the treatment of detainees to qualify as torture, Yoo states that the conduct must induce unbearable pain. Thus, as long as the level of pain inflicted is bearable, the abuse of prisoners at Guantanamo is legally permissible. Consequently, “US officials…affirm that torture is illegal, while denying that the interrogation tactics used by their agents constitute torture” (Hajjar). The Bush Administration asserts the legality of these practices under the auspice that their methods do not warrant the classification of torture due to the insufficient level of pain they inflict.

While the Bush Administration insists that interrogation methods they authorize are not torture, the documentation of the treatment of detainees provides evidence of violations of Article 7 of the ICCPR. Even under the narrowest interpretations of torture by “War Counsel” attorneys, U.S. military personnel have committed acts that are equivalent to torture under the UNCAT. A memo sent by John Yoo in August 2002 states that for physical treatment of a detainee to qualify as torture, the pain inflicted must be equal to that of an injury to bodily functions or death. Additionally, for psychological techniques to violate international law “mental torture require[s] ‘suffering not just at the moment of infliction but…lasting psychological harm’” (Sands). There have been several documented incidents, both physical and psychological, at Guantanamo Bay in which prisoners have been denied their right to be free from torture, even under these strict definitions. Sami Al-Laithi broke two vertebrae and was nearly paralyzed due to beatings endured during interrogations in which his body was slammed against the floor and walls of the interrogation room – he is now confined to a wheelchair. Mohammed al-Qahtani was described by “an F.B.I. agent…as talking to non-existent people, reporting hearing voices, [and] crouching in a corner of the cell covered with a sheet for hours on end” (Sands). The prisoner in the former case was subjected to pain equivalent to serious physical injury, while the latter prisoner suffers from lasting psychological trauma. The treatment of these detainees qualifies as torture, even according to the narrow legal analysis of the Bush Administration. These are not uncommon cases, and both illustrate the norm of treatment detainees at the detention facility are exposed to. Although the “War Counsel” substantially limited the legal definition of torture, the interrogation methods authorized and employed at Guantanamo Bay violate the Article 7 of the ICCPR which protects individuals against the use of torture.

In response to accusations of authorizing the use of torture on detainees, the Bush Administration additionally asserts that individuals detained at Guantanamo Bay are not protected by international law. As previously discussed, the White House denies any allegations of torture; nonetheless it claims that prisoners in the War on Terror are not protected against international prohibitions against torture. In a memo from January 2002, Yoo explains the legal reasoning behind the assertion that prisoners at Guantanamo are not protected under international law: “These treaties do not protect members of the al Qaeda organization…[or] to the Taliban militia…[they are] merely a violent political movement…and not a nation-state. As a result, it is ineligible to be a signatory to…customary international law” (Yoo). The “War Counsel” claims that these prisoners have no legal rights because they are not citizens of a nation-state. According to this logic, Guantanamo detainees are not protected against torture because as alleged members of al Qaeda or the Taliban, they are not party to international law. Consequently, combatants in the War on Terror are not shielded by the prohibitions against torture found in Article 7 of the ICCPR and the UNCAT. As a result, the Bush Administration defends the legality of their interrogation methods, whether or not they constitute torture, according to the assertion that detainees are not party to international law.

The logic that prisoners held in the Guantanamo detention facility are not protected by international prohibitions against torture is deeply flawed. Although John Yoo and the “War Counsel” claim that detainees are not party to international law, the United States government is a signatory to the ICCPR and the UNCAT. The ICCPR protects all individuals against acts of torture, not just members of nation-states: “No one shall be subjected to torture” (International). Therefore, the ICCPR legally shields prisoners held at Guantanamo against acts of torture because the United States ratified the international covenant. Article 2.2 of the UNCAT, which the United States has also ratified, establishes that there are no legal justifications for employing the use of torture: “No exceptional circumstances whatsoever…may be invoked as a justification of torture” (Convention). The explanation that detainees at Guantanamo are not party to international law is nullified because the UNCAT prohibits the torture of any persons, under any circumstances. This interpretation of both international legal documents is reiterated by Christopher Greenwood, a member of the International Court of Justice: “it would be unlawful to use torture, inhumane or degrading treatment as a means of coercing a person to answer questions irrespective of [his legal status]” (Greenwood). In accordance with the ICCPR and the UNCAT, the United States cannot legally torture any person, including a prisoner in the War on Terror. The legal status of a detainee is inconsequential regarding the protections international law provides against torture. Thus, prisoners under U.S. custody are protected against torture because the United States is party to the ICCPR and the UNCAT which prohibit its implementation.

Regardless of the legality of these interrogation techniques authorized with the intent to obtain vital intelligence, the use of torture inherently produces unreliable information. The justification for the use of deliberately harsh techniques, which constitute torture as addressed earlier, is that they effectively compel detainees to share lifesaving information with U.S. interrogators. However, experts on interrogation acknowledge that information obtained from a prisoner by way of torture is inherently inaccurate: “the same goes for even the harshest torture. When the subject breaks, he often lies. Prisoners ‘have only one objective–to end the pain,’ says retired Col. Kenneth Allard, who was trained in interrogation. ‘It’s a huge limitation’” (Alter). This analysis of the ineffectiveness of torture techniques is further confirmed by the actual information provided to interrogators by prisoners subjected to torture during interrogations. Colonel Couch, who was supposed to prosecute Guantanamo detainee Mohamedou Slahi, refused to participate in the case because the defendant’s confession and intelligence were entirely fabricated. This excerpt from Slahi’s dairy depicts his willingness to admit to any accusations in an effort to stop the torture: “I tried my best to make myself look as bad as I could and that exact way you can make your interrogator happy” (Torturing). Detainees subjected to torture at Guantanamo Bay are primarily concerned with ending their severe suffering. Consequently, they are often willing to admit to every accusation and are compelled to fabricate information to temporarily appease their interrogator. Therefore, the application of torture at the Guantanamo detention facility to extract critical intelligence is fundamentally flawed because harsh techniques result in falsified information and confessions.

Yet, the White House asserts that their interrogation methods are necessary and effective to collect lifesaving intelligence from detainees at Guantanamo Bay. The C.I.A, with the approval of the Bush Administration, hired psychologists James Mitchell and Bruce Jessen to oversee and train interrogators at the Guantanamo Bay detention facility. Both Mitchell and Jessen are known from employing harsh interrogation techniques, such as water-boarding and simulated killings, which are legally classified as torture according to international law. The implementation of these torture methods, under the direction of the psychologists, was commended by the C.I.A. for coercing vital intelligence out of Abu Zubaydah and other top-level detainees: “the C.I.A. would go on to claim credit for breaking Zubaydah, and celebrate Mitchell as a psychological wizard who held the key to getting hardened terrorists to talk… Mitchell and Jessen had been awarded a medal by the C.I.A. for their advanced interrogation techniques” (Eban). The C.I.A and the White House claim that the specific interrogation methods of Mitchell and Jessen were central to gathering lifesaving intelligence. They assert that the information that was coerced out of Guantanamo prisoners was accurate and reliable. Therefore, the Bush Administration affirms that the torture techniques used at Guantanamo Bay, regardless of their legality, are not only successful but required to extract intelligence from detainees.

Despite claims by the Bush Administration that the approved techniques are effective, the interrogation methods employed at Guantanamo, based on the SERE military program, are designed to acquire fabricated information and confessions for propaganda purposes. The SERE program (Survival, Evasion, Resistance and Escape) is designed to train members of the U.S. Armed Forces to withstand interrogation and torture techniques if they are captured by a “totalitarian evil nation with a complete disregard for human rights” (Torturing). Ironically, the U.S. currently employs these interrogation methods in Guantanamo Bay that were supposedly exclusive to some fictional evil state with disdain for human rights. The methods that U.S. soldiers are trained to withstand are designed to produce falsified confessions for propaganda. Colonel Kleinman, a member of the U.S. Air Force who conducts SERE training for U.S. military personnel, describes the ineffectiveness of these interrogation practices: “if our purpose was, as interrogators, to…force somebody to comply and to create propaganda – then they’re great…But that’s not what we’re after. We’re after intelligence information which is true” (Torturing). According to Colonel Kleinman, the torture methods used on detainees at Guantanamo Bay are not designed to obtain reliable intelligence from prisoners. As a result, the interrogation techniques approved by the Bush Administration are not necessary or even beneficial for the collection of information to potentially save civilian lives. Thus, even if all legal and moral obligations are irrelevant, there is still no legitimate justification to torture detainees if the practice itself is not only ineffective but also counterproductive.

The methods authorized by the Bush Administration to interrogate detainees at the Guantanamo Bay prison facility are both illegal and ineffective. The interrogation techniques violate the prohibitions against torture included in both Article 7 of the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture because they are intended to inflict extreme suffering to obtain intelligence. These methods, which constitute torture according to the international legal definition, are designed to elicit fabricated intelligence and are thus unproductive and ineffective for collecting reliable information. Consequently, both the legal and practical justifications for the torture techniques practiced at Guantanamo are inherently flawed. Yet, significant further research is required to determine which individuals are culpable for human rights violations and what necessary steps should be taken to prevent these norm-violating actions in the future. This analysis is necessary to examine the recent human rights record of the United States, with respect to the detentions at the Guantanamo Bay Naval Base. By exposing the gap between reality and the continued rhetoric as the pinnacle of freedom and justice in the War on Terror, it is evident that the United States has violated international law and committed extensive abuses against human rights.

Much has changed regarding the detentions at Guantanamo Bay Naval Base, with the inauguration of the 44th President in early 2009. During his first week in office, President Barack Obama signed an executive order to close the Guantanamo detention facility within the year. Yet, uncertainty remains concerning the status of foreign nationals currently being held at Guantanamo. Moreover, recent comments by Bush Administration officials call attention to the potential prosecution of former members of the Executive Branch and the Justice Department.

In anticipation of the closure of the detention center, the Obama administration must determine the status of the 250 prisoners still held at Guantanamo. While many of the Guantanamo detainees have been held for years without charge, no country appears willing to grant them refuge. The difficulty of this dilemma is illustrated by a recent federal appeals court ruling. On February 18th, judges from the D.C. Federal Court of Appeals overruled a previous decision allowing the entry of 17 Uighur men to the United States. None of these detainees, who hail from the northwestern Xinjiang province of China, have been charged with a crime and would be subject to harsh persecution if returned to China. In 2006, Albania granted asylum to five Uighur prisoners from Guantanamo in an effort to gain favor with the United States. However, the former detainees remain unemployed due to their inability to speak Albanian and, have no way of communicating with their family in China. While the Bush Administration maintained that prisoners should remain at Guantanamo unless another country willingly accepts them, President Obama’s order to close the facility in the next year necessitates the determination of their legal status. If President Obama is serious about closing the Guantanamo detention center and taking a needed step away from Bush administration injustices, he should revise the American detention policy to allow the 17 Uighurs, and all other prisoners held without charges, to gain asylum in the United States.

Recent comments made by former-Vice President Cheney and former-Justice Department official Yoo candidly confirm the Bush Administration’s approval of interrogation techniques equivalent to torture. In a series of interviews following the inauguration of President Obama, Dick Cheney has continually affirmed his approval of CIA water-boarding techniques. He also warned that President Obama’s departure from these policies will increase the likelihood of a successful terrorist attack on U.S. territory. In an opinion published the Wall Street Journal, John Yoo confirms that President Bush authorized the use of water-boarding on three separate occasions. He additionally maintains that the legal opinions he admittedly authored in support of the coercive techniques, specifically water-boarding, are necessary to elicit intelligence from the “hardened” terrorists held at Guantanamo Bay. Both Cheney and Yoo’s comments increase speculation over the possibility of future criminal prosecution under international law. The recent arrest warrant issued for Sudanese President al-Bashir by the International Criminal Court – the first time the detention of a current head of state has been pursued – raises hopes of the international assertiveness of ICC. However, limitation of the ICC warrants to leaders in developing countries generates fears of a two-tiered international justice system, while the actions of western officials go unchallenged. Domestically, discussions by the Obama administration to merely investigate orders by Bush Administration officials regarding allegations torture are discouraging, especially given that specific documents that establish their culpability are publically accessible. It is unclear whether the comments made by Cheney and Yoo will bolster a case for their criminal prosecution, or instead confirm their perception that neither the Obama Administration nor the ICC have the fortitude to pursue prosecution.

References

Photo courtesy of art makes me smile, burge5000, habacuc_1988

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