The result
In the War on Terror, CIA techniques for interrogating high-value captives reportedly include waterboarding, a centuries-old torture technique of neardrowning. Tactics also include “Long Time Standing” (“Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours”), and “The Cold Cell” (“The prisoner is left to stand naked in a cell kept near 50 degrees.
Throughout the time in the cell the prisoner is doused with cold water.”)18 All these techniques surely induce the “severe suffering” that the law defines as torture. Consider Long Time Standing. In 1956, the CIA commissioned two Cornell Medical Center researchers to study Soviet interrogation techniques. They concluded: “The KGB simply made victims stand for eighteen to twenty-four hours - producing ‘excruciating pain’ as ankles double in size, skin becomes ‘tense and intensely painful,’ blisters erupt oozing ‘watery serum,’ heart rates soar, kidneys shut down, and delusions deepen.”19“cruel, inhuman, and degrading” treatment so that conduct outside US borders does not count. He also defined “humane” treatment as involving nothing more than providing detainees with food, clothing, shelter, and medical care; consistent with this view, the Army’sSchmidt Report concluded that intensive sleep deprivation, blasting detainees with ear-splitting rock music, threatening them with dogs, and humiliating them sexually “did not rise to the level of being inhumane treatment.” Army Regulation 15-6 Final Report: Investigation of FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility [hereafter: Schmidt Report], at 1, available at. Legal obligations were defined so narrowly that US officials could truthfully say that the United States complies with its legal obligations, simply because it hardly has any to comply with.
18 Brian Ross & Richard Esposito, CIA's Harsh Interrogation Techniques Described, ABC News, November 18, 2005, available at. At least one Afghani captive reportedly died of hypothermia in a CIA-run detention facility after being soaked with water and shackled to a wall overnight. Bob Drogin, Abuse Brings Deaths of Captives Into Focus, L.A. Times, May 16, 2004. The US government has never officially acknowledged which techniques it uses. However, in a September 2006 speech, President Bush for the first time admitted that the CIA held high-value detainees in secret sites, and interrogated them using “an alternative set of procedures,” which he described as “tough... and safe... and lawful... and necessary.” Office of the Press Secretary, The White House, President Discusses Creation of Millitary Commissions to Try Suspected Terrorists, September 6, 2006, available at. Subsequently, the government argued that revelation of the techniques could cause “exceptionally grave damage” to national security - so much so, that detainees should not be permitted to tell their own civilian lawyers what was done to them. Declaration of Marilyn A. Dorn, Information Review Officer, CIA, in Majid Khan v. George W. Bush, U.S. Dist. Court, District of Columbia, Civil Action 06-CV-1690, October 26, 2006, available at ; Respondents’ Memorandum in Opposition to Petitioner’s Motion for Emergency Access to Counsel and Entry of Amended, Protective Order, in Khan v. Bush, available at.
19 Quoted in Alfred W. McCoy, Cruel Science: CIA Torture & US Foreign Policy, 19 New England J. Pub. Pol. 209, 219 (2005).
More important, perhaps, than authorizations of specific tactics are open- ended, tough-sounding directives that incite abuse without explicitly approving it, such as a 2003 email from headquarters to interrogators in Iraq: “The gloves are coming off, gentlemen, regarding these detainees. Col. Boltz has made it clear we want these individuals broken.”[305] In response, a military interrogator named Lewis Welshofer accidentally smothered an uncooperative Iraqi general to death in a sleeping bag - a technique that he claimed his commanding officer approved.
Welshofer was convicted of negligent homicide, for which he received a slap on the wrist: a written reprimand, two months’ restriction to base, and forfeiture of $6,000 in pay. The commanding officer who approved the sleeping-bag interrogation suffered no adverse consequences.[306] Similarly, Manadel Jamadi, a suspected bombmaker, whose ice-packed body was photographed at Abu Ghraib next to a grinning soldier, was seized and roughed up by Navy SEALS in Iraq, then turned over to the CIA for questioning. At some point, either the SEALS or the CIA interrogator broke Jamadi’s ribs; then he was hooded and hung by his wrists twisted behind his back until he died. The CIA operative has still not been charged two years after Jamadi’s death. And the SEAL leader was acquitted, exulting afterward that “what makes this country great is that there is a system in place and it works.”[307] It worked as well in another notorious case of prisoner abuse, when two young Afghaniswere found dead within days of each other, hanging by their shackled wrists in isolation cells at the [US military] prison in Bagram, north of Kabul. An Army investigation showed they were treated harshly by interrogators, deprived of sleep for days, and struck so often in the legs by guards that a coroner compared the injuries to being run over by a bus.[308]
The investigation stalled because “officers and soldiers at Bagram differed over what specific guidelines, if any, applied,” an ambiguity that “confounded the Army’s criminal investigation for months and... gave the accused soldiers a defense... ”[309]
In addition to harsh interrogations by its own personnel, the United States has engaged in so-called “extraordinary renditions,” where detainees are sent to other countries for interrogation by local authorities of sinister reputation. The practice, nicknamed “outsourcing torture,” has existed since the Clinton administration, but accelerated dramatically in the War on Terror.25 Several detainees, seized by mistake, rendered, and later released, describe torture inflicted on them.26 In May 2006, the State Department’s legal advisor made explicit what observers had long surmised: that US lawyers believe the Torture Convention’s ban on returning people to states where they face torture does not cover cases where the person is rendered from a country other than the United States.27
Thus, “We don’t torture” comes with an asterisked proviso: “It depends who you mean by ‘we,’ and it depends what you mean by ‘torture.’ ” Likewise, “The United States obeys its legal obligations” comes with the unspoken qualification “...
which is easy because we hardly have any.” The provisos are the torture lawyers’ handiwork. They allow politicians to profess great respect for law and human rights, while operating without the fetters that their noble words suggest.How did we get there?
25 Jane Mayer, Outsourcing Torture, The New Yorker, February 5, 2004. See also an interview with Michael Scheuer, an ex-CIA officer who helped develop the program: “Die CIA hat das Recht, jedes Gesetz zu brechen”: Darf der US-Geheimdienst mutmassliche Terroristen entfuhren? Michael Scheuer, ein Hauptverantwortlicher, gibt erstmals Antworten, Die Zeit (Hamburg), December 28, 2005, available at. An English translation is available at.
An investigation has revealed, perhaps unsurprisingly, that several European countries whose governments expressed shock at revelations that their bases and airports formed part of the secret CIA rendition network actually were colluding with the United States. Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Alleged Secret Detentions and Unlawful Inter-State Transfers Involving Council of Europe Member States, Draft report by Dick Marty, June 7, 2006, available at.
26 The best-known is Maher Arar. See Mayer, Outsourcing Torture, supra note 25; Katherine R. Hawkins, The Promises of Torturers: Diplomatic Assurances and the Legality of “Rendition”, 20 Georgetown Imm. L. J. 213 (2006). Another was Khaled El-Masri, a German cab driver seized while on holiday in Macedonia, turned over to US agents, and held for months in Afghanistan. See Extraordinary Rendition, Harper’s Mag., February 2006, at 21-24 (excerpting El-Masri’s statement). His was a case of mistaken identity, which created a sensation in Germany after he was released. US courts refused to hear lawsuits filed by Arar and El-Masri, on the astonishing basis that revealing “state secrets” about gross government misconduct could embarrass the United States and therefore be bad for national security. Arar v. Ashcroft, 414 F.Supp.2d 250, 281-83 (E.D.N.Y. 2006); El-Masri v. Tenet, E.D. Va., Case 1:05cv1417 (memorandum opinion of Ellis, J., May 12, 2006). Another rendition victim, Laid Saidi, claims that his US captors transported him to Afghanistan, hung him by his wrists for five days, and released him only after sixteen months, Craig S. Smith & Souad Mekhennet, Algerian Tells of Dark Odyssey in US Hands, N.Y. Times, July 7, 2006 available at.
27 List of Issues to Be Considered During the Examination of the Second Periodic Report of the United States of America: Response of the United States of America 32-37 (2006), available at.