Legality of Torture to Extract Information from Detainees

[Marty Lederman]

FYI, today's Wall Street Journal has a follow-up story:

http://online.wsj.com/article_email/article_print/0,,SB108665826716631274-INjgYNilaF3nZusbHSGaa2Hm4,00.html.

Excerpts:

Some top military lawyers in the Pentagon are questioning the propriety of interrogation techniques currently being employed to question al Qaeda captives at the U.S. detention facility in Guantanamo Bay, Cuba, senior defense officials said. . . .  Their objections to many of the tactics approved for use at Guantanamo illustrate a rift between senior military lawyers and Bush administration lawyers inside the Pentagon about which extreme interrogation measures are legal.  "There's a divide within the military," said an officer who recently retired from a position with the Joint Chiefs of Staff. "There's a group that's more willing to take the more 'creative' approach of the [secretary of defense] and the politicos, and then the more "conservative" officers who want to hew more closely to the traditional understanding of military and international law, the retired officer said. "There's a term floating around called the 'revolt of the professionals,'" this officer said. . . . .  "Some of this stuff to me is beyond the pale," said retired Rear Adm. Don Guter, who was the Navy's top uniformed lawyer until June 2002. "I can't imagine any of the [international]-law people I know" in the Navy's legal corps "validating these things," he said, referring to portions of the draft report that were disclosed by the Journal. "What court in the land would tolerate any of these things?" . . . . "The final draft was less harsh than the earlier drafts. But even in the final draft many of the lawyers felt that many of the interrogation techniques were not in keeping with the Geneva Conventions [designed to safeguard prisoners] and the Convention Against Torture," said a senior defense official.
----- Original Message ----- 

  From: Marty Lederman 
  To: conlawprof at lists.ucla.edu ; Chris SCHROEDER 
  Sent: Tuesday, June 08, 2004 8:03 AM
  Subject: Re: Legality of Torture to Extract Information from Detainees


  There appear to be at least two (and presumably more) memos of significance:  

  1.  An OLC Opinion dated from August 2002, signed by AAG Bybee, as reported in today's Washington Post:

  http://www.washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html; and

  2.  The subsequent DOD memo, which appears to have been a group effort by folks at DOD, DOJ, the Vice President's Office, and elsewhere.  The Wall St. Journal article describing it has been reprinted here:

  http://www.infoshop.org/inews/stories.php?story=04/06/07/0988582

  And the NYTimes has more on the DOD Memo here:

  http://nytimes.com/2004/06/08/politics/08ABUS.html?hp

  As far as I can tell, thus far no one has linked to the memos online.  If anyone finds any links, or electronic copies, please send them along.  

  On this topic generally, I highly recommend Sandy Levinson's excellent, and prescient, recent article, at 81 Texas L. Rev. 2013 (2003).  John Parry and Seth Kreimer also have written important recent articles on the Torture Convention.  Also indispensible, if a bit less focused on the legal questions, are Mark Bowden's essay on torture in the October 2003 Atlantic Monthly and Mark Danner's recent two-parter in the New York Review of Books.

  The Administration memos in question apparently take a very narrow view of what constitutes "torture" for purposes of the Torture Convention and 18 U.S.C. 2340A.  If so, they are not alone in that regard.  When the Senate ratified the Convention, its advice and consent was expressly made "subject to the following understandings, which shall apply to the obligations of the United States under this Convention:  (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) 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; (3) the threat of imminent death; or (4) the threat that 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."

  As Sandy notes in his article, "[o]ne need not be a particularly well-trained lawyer to recognize that the language of the initial Convention and that added by the Senate are significantly different."

  In any event, the Convention is not limited to a prohibition on "torture," as such.  It also provides that "no one shall be subjected to . . . inhuman or degrading treatment or punishment." and that "no State Party shall . . . extradite a person where there are substantial grounds for believing that they would be in danger of being subjected to torture."  As to the former, the Senate specified "that the United States considers itself bound by the obligation under article 16 to prevent 'cruel, inhuman or degrading treatment or punishment,' only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."  One would think that, if handcuffing prisoners to a hitching post is so clearly unconstitutional as to preclude qualified immunity, see Hope v. Pelzer, then at least some of the interrogation techniques that have been approved for Al Qeada detainees also would violate constitutional norms, and thus would violate the Convention.  It will therefore be interesting to see how (if at all) the Memos in question deal with the "inhuman or degrading treatment" provision of the Convention.       

  Marty

  Disclosure:  I worked at OLC at the time these memos were written.  However, I did not have access to, or even knowledge of, the memos while at OLC.

  ----- Original Message ----- 
    From: Chris SCHROEDER 
    To: marty.lederman at comcast.net ; conlawprof at lists.ucla.edu 
    Sent: Tuesday, June 08, 2004 7:01 AM
    Subject: Re: Legality of Torture to Extract Information fromTerrorists


    Following on Marty's resurrection of an old thread, here is a recent update to another such.  Below is an excerpt from Slate's review of the recent reporting (WSJ yesterday, WP and NYT today) on a memo approving of the President ordering torture in the war on terrorism.  Slate's commentary raises (at least) several interesting questions:  (a) it refers to a memo by "administration" lawyers "based on" a 2002 DOJ briefing.  It is not clear whether the memo itself emanated from DOJ, the White House counsel's office, or somewhere else; (b) it appears, but is not entirely clear, that the legal argument is that the President can authorize interrorgation techniques that would be torture under international treaty or convention had they not been so authorized (reminiscent of President Nixon's claim that when the President does it it is not unconstitutional) (c) but there are techniques that even the President cannot authorize (in the words of the report - that "cross the line.")  Presumably, the justification for the claim that even Presidential-authorized interrogation has its limits emanates from the Constitution (due process? cruel and unusual?).  If so, then the memo stops short of endorsing the most robust version of Nixonianism; (d) there is an interesting parallel between the reported military's reaction to the memo and to the reported reaction of many law enforcement officers to the dispute over whether Miranda warnings are constitutionally required; (e) I have heard that there were protests at Boalt's recent graduation related to a memo allegedly written by John Yoo regarding conduct at Gtmo - does anyone know if there is a connection between the stories referenced below and that one?


    Barely Legal, White House Style 
    By Eric Umansky 
    Posted  Tuesday, June 8, 2004, at 1:08 AM PT


    The Washington Post leads with, and New York Times off-leads, follow-up to yesterday's Wall Street Journal bombshell that administration lawyers penned a brief last spring asserting that the president is allowed to order torture and detailing how torture statutes and treaties purportedly don't apply. The Post says that memo appears to be largely based on an August 2002 Justice Department briefing, which stated that torture "may be justified...in order to prevent further attacks on the United States." That memo said that for torture to cross the line, it "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." ... The NYT adds a few excerpts detailing the March 2003 report's clear-as-can-be definitions for torture. For instance, the report stipulated that even though an interrogator might know "that severe pain will result from his actions, if causing such harm is not his objective he lacks the requisite specific intent even though the defendant did not act in good faith." The report concluded, "A defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his control."As the journal noted yesterday, some military lawyers objected to the administration's stance. "It's really unprecedented.. For almost 30 years we've taught the Geneva Convention one way," one military attorney told the Post. "Once you start telling people it's okay to break the law, there's no telling where they might stop."The military insisted that the memos were just lawyer talk. "What is legal and what is put into practice is a different story," said a Pentagon spokesman. The Post notes that after the memo was passed around, SecDef Rumsfeld approved 24 interrogation techniques for Gitmo. The military hasn't released a list of them.The NYT says inside that it was common to keep suspected guerrillas naked at Abu Ghraib and it appears that the practice started well before the supposedly rogue unit arrived and took the now infamous photos. As the Times mentions, there have been other accounts of forced nudity at U.S. prisons in Afghanistan and Gitmo.  

    Chris  



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