Center for American Progress

A Letter to Secretary Rice on Standards for Permissible Interrogations
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A Letter to Secretary Rice on Standards for Permissible Interrogations

The Center for American Progress joins with organizations to urge Secretary Rice to support strong standards on permissible interrogations.

Dear Secretary Rice:

We are writing to urge you to support strong standards on permissible interrogations – standards that are consistent with U.S. values, statements and law, with the Geneva Conventions, and with other international legal standards.

Section 6 of the Military Commissions Act of 2006 provides that acts amounting to “torture” and “cruel or inhuman treatment” constitute felonies under the War Crimes Act. It also directs the president “to promulgate higher standards and administrative regulations” governing violations of the Geneva Conventions. Section 6 also prohibits “cruel, inhuman or degrading treatment or punishment” as prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution and directs the president to “take action to ensure compliance with this subsection, including through the establishment of administrative rules and procedures.”

We understand from press reports that the administration is considering an executive order on compliance with Common Article 3 of the Geneva Conventions as well as new guidelines on CIA interrogation procedures. We urge the administration to adopt rules that would clearly prohibit the interrogation techniques that have been widely reported to be part of the “enhanced” interrogation regime used by the CIA – all of which violate Common Article 3.

As we will detail below, there are numerous reasons why it is imperative for the United States to once and for all make clear that its interrogation practices are consistent with U.S. values and with international law. Contrary to frequent claims, ambiguity about U.S. interrogation practices has not – on balance – benefited U.S. security. On the contrary, this ambiguity, combined with the Abu Ghraib scandal and numerous deaths in custody, has severely damaged U.S. efforts to defeat terrorists. In light of the Supreme Court’s holding in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), approving legally questionable, “enhanced” interrogation techniques risks even more serious damage because:

1. Under Hamdan, all of Common Article 3 applies to CIA interrogations and Common Article 3 forbids more than the “grave” breaches defined by the MCA;

2. Under Hamdan, if the United States allows the CIA to use an “enhanced” interrogation technique it can no longer argue that Common Article 3 prohibits an enemy from using that same technique;

3. U.S. troops and allied forces depend heavily upon a strict interpretation of Common Article 3;

4. Congress intended to “rein in” the CIA interrogation program in passing the MCA and made clear in the debate that many “enhanced” techniques are “clearly” prohibited;

5. The “enhanced” interrogation techniques in fact violate Common Article 3;

6. Indeed, each of the “enhanced” interrogation techniques – which will be discussed in detail below – violates international norms, prior U.S. practice and judicial decisions and represents a sharp departure from both U.S. and international norms.

These techniques are sometimes defended on the basis of their supposed effectiveness at obtaining information. But effectiveness cannot convert a felony into lawful conduct, would not rectify a breach of Common Article 3, and does not make a given technique any less painful, cruel, or degrading. Therefore, this letter will not directly address that issue.

We note, however, that the recent report of the Intelligence Science Board published by the National Defense Intelligence College raises serious questions about the supposed effectiveness of abusive interrogations.[1] We also note the substantial body of opinion among serving senior officers and career interrogators that such techniques are not only illegal but ineffective as well, and undermine our ability to elicit reliable intelligence.

For example, in releasing the new U.S. Army Field Manual on interrogation Lt. Gen. John F. Kimmons, Army deputy chief of staff for intelligence, said that “no good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that.” Likewise, Gen. David Petraeus, the commander of U.S. forces in Iraq, recently wrote that “Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary.” Moreover, military officers have said any suggestion by the White House that such techniques can be used by the CIA will undermine the authority of military commanders in the field, who have told their troops that they are never acceptable.

All Violations of Common Article 3 are Prohibited – Not Just “Grave” Breaches

In Hamdan, the Supreme Court ruled that Common Article 3 applies to the conflict with Al Qaeda. Common Article 3 prohibits “cruel treatment and torture.” It also prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment….”

The Military Commissions Act defines certain “grave” breaches of Common Article 3, including “torture” and “cruel or inhuman treatment.” These grave breaches can be prosecuted as felonies under the War Crimes Act. But Congress rejected the administration’s proposal to limit U.S. obligations under Common Article 3 to these “grave” breaches. Indeed, it specifically directed the president to define those “violations of treaty obligations which are not grave breaches of the Geneva Conventions” (emphasis added). In other words, any interrogation technique that is humiliating or degrading is prohibited even if it is not a felony. All of Common Article 3 still applies to CIA interrogations under Hamdan and the MCA did not change that in any way.

What the CIA Can Lawfully Do, An Enemy Can Lawfully Do

Under Hamdan, a decision that an interrogation technique may be employed by the CIA in the conflict with Al Qaeda amounts to a decision that the technique does not violate Common Article 3. Thus, if the United States adopts a legal interpretation that a particular interrogation technique does not violate Common Article 3 and its prohibition on “cruel treatment” and “outrages on personal dignity,” this will establish a precedent that the subsequent use of this technique on U.S. personnel does not violate Common Article 3.

This fact underscores the wisdom of the U.S. Army Field Manual guidance on determining the outer limits of permissible interrogation:

In attempting to determine if a contemplated approach or technique should be considered prohibited … consider [this test]: If the proposed approach [or] technique were used by the enemy against one of your fellow soldiers, would you believe the soldier had been abused?[2]

This same standard must guide the administration’s decision on permitted CIA interrogation techniques because this decision will amount to an authoritative U.S. legal interpretation on the requirements of Common Article 3.

This is hardly a theoretical concern for the United States. To name just one example, during the Cold War, captured CIA officers John T. Downey and Richard Fecteau were subjected by Chinese interrogators to precisely the kinds of harsh interrogation techniques that are now reportedly being used by the CIA. According to public reports, they were subjected to sleep deprivation, “long time standing,” prolonged use of leg irons and other “harsh” techniques – but were not beaten or otherwise physically assaulted:

The interrogations began, with sessions usually lasting for four hours, but some as long as 24 hours straight. Sleep deprivation was part of the game: the men were prohibited from sleeping during the day and the Chinese would invariably haul them off for middle of the night interrogations after a half hour’s sleep…. The men were never tortured physically or, after their initial capture, beaten. Fecteau reported that he wore leg irons constantly for the first 10 months and that he was made to stand during interrogations to the point of falling down from exhaustion, especially after being caught lying or bluffing. Downey remembered the leg irons and the intense psychological pressure of interrogations….

Each received the Distinguished Intelligence Medal for “courageous performance” in enduring “sufferings and deprivations…?.” Their story, [former CIA Director George] Tenet declared, “is one of the most remarkable in the history of the Central Intelligence Agency.”[3]

It would be extremely unfortunate for the administration to approve the very techniques to which these CIA agents were subjected and to declare, in effect, under Common Article 3 U.S. personnel may be subjected to sleep deprivation, stress positions, and other harsh interrogation techniques.

U.S. Troops and Allied Forces Rely on a Strict Interpretation of Common Article 3

The United States has relied heavily on Common Article 3 in the past and has insisted on a broad interpretation of its requirements. There have been many situations – including the situation of U.S. POWs in Vietnam – in which other parties have argued that U.S. forces were not entitled to the full protections of the Geneva Conventions. They have argued, for instance, that U.S. personnel were “war criminals” or that the conflict in question was a “civil war” and not of an “international character.” The U.S. legal response has been that these positions were incorrect, but that, even if they were correct, U.S. forces were entitled to the full protections of Common Article 3 under any circumstances.

During the debate on the MCA, a group of 49 distinguished retired military leaders, including General John Shalikashvili, USA (Ret.), former Chairman of the Joint Chiefs of Staff, General Joseph Hoar, USMC (Ret.), former commander of the Central Command, and Ambassador Douglas “Pete” Peterson, USAF (Ret.), who spent six years as a POW in Vietnam, made this argument in a September 12, 2006 letter to Sens. John Warner (R-VA) and Carl Levin (D-MI). They argued that the United States relies heavily on Common Article 3, and weakening its standards places U.S. servicemembers at risk:

We have abided by [Common Article 3] in our own conduct for a simple reason: the same standard serves to protect American servicemen and women when they engage in conflicts covered by Common Article 3. Preserving the integrity of this standard has become increasingly important in recent years when our adversaries often are not nation-states….

If any agency of the U.S. government is excused from compliance with these standards, or if we seek to redefine what Common Article 3 requires, we should not imagine that our enemies will take notice of the technical distinctions when they hold U.S. prisoners captive. If degradation, humiliation, physical and mental brutalization of prisoners is decriminalized or considered permissible under a restrictive interpretation of Common Article 3, we will forfeit all credible objections should such barbaric practices be inflicted upon American prisoners.

This is not just a theoretical concern. We have people deployed right now in theaters where Common Article 3 is the only source of legal protection should they be captured. If we allow that standard to be eroded, we put their safety at risk.

Eroding Common Article 3 also places at risk allied forces fighting side-by-side with U.S. troops. When these groups ally themselves with the United States – like the Northern Alliance in Afghanistan or the Hmong during the Vietnam War – they need a strong interpretation of Common Article 3. U.S. adversaries in these conflicts may argue that local U.S. allies are not POWs because they were fighting in an “internal” conflict, were “traitors” or “spies,” were not in organized units with a clear chain of command, did not wear uniforms, or all of the above. U.S. commanders do not want to say, “Our forces are POWs – you are on your own.” In other words, even if the United States argues that CIA interrogation techniques cannot legally be applied to uniformed U.S. servicemembers, the United States would still be forfeiting its standing to argue that its allies cannot be subjected to brutal interrogation techniques because they are prohibited by Common Article 3.

Congress Intended to “Rein In” the “Enhanced” Interrogation Techniques in the MCA

It is extremely important to note that contrary to the claims of administration representatives, the MCA was emphatically not intended to authorize harsh CIA “enhanced” interrogation techniques. In fact, the most prominent Republican sponsors of the MCA stated publicly that specific “enhanced” CIA interrogation techniques will not be permissible under the law. Sen. Lindsey Graham (R-SC) said specifically during the Senate debate that the bill “reined in the [CIA] program.” [4] Sen. John McCain (R-AZ) said that he was “confident” that the bill would “criminalize certain interrogation techniques, like waterboarding and other techniques, that cause serious pain or suffering that need not be prolonged….”[5]

Most significant of all, the chairman of the Senate Armed Services Committee, Warner, stated that all the techniques banned by the U.S. Army Field Manual constitute “grave breaches” of Common Article 3 and are “clearly prohibited by the bill.”[6] No one contradicted that statement by the Committee chairman and key negotiator of the language at any point in the congressional debate. Here are the techniques that Warner stated are “clearly prohibited by the bill” – indeed, Warner said that these are all felonies (“grave breaches”) under the MCA:

  • Forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner.
  • Placing hoods or sacks over the head of a detainee; using duct tape over the eyes.
  • Applying beatings, electric shocks, burns, or other forms of physical pain.
  • “Waterboarding.”
  • Using military working dogs.
  • Inducing hypothermia or heat injury.
  • Conducting mock executions.
  • Depriving the detainee of necessary food, water, or medical care.

Any discussion of permitted interrogation techniques under Common Article 3 must begin with the understanding that Congress made it clear that these techniques – at a minimum – are felonies under the MCA definitions.[7] There are no doubt other acts that constitute “grave breaches” and, as noted above, even non-grave breaches still violate Common Article 3 under the MCA. But these techniques are “clearly” grave breaches.

In the House, senior Republican Rep. Christopher Shays (CT), Vice Chairman of the Government Reform Committee and a member of the Homeland Security Committee, also said that “any reasonable person” would conclude that the CIA “enhanced interrogation techniques” clearly cause serious mental and physical suffering.[8] Another senior Republican denounced as “absolutely false” any claim that the bill authorized the “enhanced” interrogation techniques, saying that such claims “fly in the face” of the bill’s language.[9]

Some members of Congress made general claims that the new law would permit the CIA interrogation “program” to continue, but not one member of Congress defended the specific “enhanced” techniques discussed below or maintained that these techniques were legal under the MCA provisions. Such vague claims are clearly outweighed by the specific comments of McCain, Graham, and Warner – the three Republican senators who negotiated the compromise language in the bill. They were clear: the MCA was intended to rein in the CIA program, making sleep deprivation, hypothermia, and other forms of extreme deprivation grave breaches of Common Article 3 that are clearly prohibited by the MCA.

CIA “Enhanced” Interrogation Techniques Violate Common Article 3

The most detailed public account of the “enhanced” interrogation techniques used by the CIA was published in a Nov. 8, 2005 ABC News report. While the administration has refused to confirm or deny this account, it is widely cited and seen as credible. This letter does not assume that this is a comprehensive list of all the interrogation techniques that have been used. It certainly does not attempt to address every reported technique or every technique that might be used. However, we wish to address these specific, widely reported techniques as a means of illustrating the manifest ways in which they, at a minimum, conflict with Common Article 3, other international standards, and past U.S. policy and practice.

The techniques reported by ABC News include violent “shaking,” striking prisoners, stress positions, extreme cold, sleep deprivation, and waterboarding. The following is the text of the ABC News description of the “enhanced” techniques:

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.

2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.

3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

4. Long Time Standing: Prisoners forced to stand handcuffed and with feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

5. 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.

6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning.

Every one of these techniques violates Common Article 3. Each constitutes an outrage upon personal dignity and can cause not only pain and humiliation but also serious physical injury. During the MCA debate a group of prominent medical experts, including the Presidents of the American Psychiatric Association and the American Psychological Association, concluded:

There must be no mistake about the brutality of the “enhanced interrogation methods” reportedly used by the CIA. Prolonged sleep deprivation, induced hypothermia, stress positions, shaking, sensory deprivation and overload, and water-boarding … among other reported techniques, can have a devastating impact on the victim’s physical and mental health. They cannot be characterized as anything but torture and cruel, inhuman, and degrading treatment….[10]

Each of the “Enhanced” Interrogation Techniques Is Illegal

Every one of the “enhanced” interrogation techniques has been the subject of considerable discussion and has been rejected as illegal. In several instances, close U.S. allies have declared these techniques or variations to be clearly illegal. In Northern Ireland, the United Kingdom used what were euphemistically called “the five techniques” including wall standing (a form of stress position), hooding, subjecting the prisoner to continuous loud noise, deprivation of food and drink, and sleep deprivation combined with “disorientation” and “sensory deprivation” techniques. In 1972 the United Kingdom publicly abandoned these “harsh” interrogation techniques and on Feb. 8, 1977 made an unqualified commitment never to reintroduce them. It declared that they were illegal.

In Israel, a unanimous Supreme Court stated in 1999 that the following techniques violated “absolute” prohibitions to which there were “no exceptions” and “no room for balancing.” The techniques included: a stress position in which the prisoner was handcuffed in an uncomfortable position in a low chair, forcing the prisoner to crouch on his toes for a prolonged period, shaking, excessive tightening of handcuffs, and sleep deprivation.

Comparing the U.K. and Israeli decisions and other precedents to the “enhanced” techniques demonstrates that whatever “grey” areas may exist at the boundaries of permissible interrogation, the reported CIA techniques are clearly viewed as being in the prohibited category.

“Shaking” is a physical assault that can cause death. Indeed, it did cause the death of a prisoner held in Israel. Subsequently, the Israeli Supreme Court found:

Plainly put, shaking is a prohibited investigation method. It harms the suspect’s body. It violates his dignity. It is a violent method which does not form part of a legal investigation….[11]

“Slapping” is another form of physical assault. In fact, the ABC News description says that this technique is deliberately designed to cause pain and fear. Using “forms of physical pain” on a prisoner is expressly banned by the U.S. Army Field Manual on Interrogation and as was noted above, Warner stated emphatically that the techniques banned by the Field Manual are “grave breaches” of Common Article 3 and “clearly” prohibited by the MCA. Assaulting a bound and defenseless prisoner can cause severe and lasting psychological trauma, as doctors who specialize in this field can easily document. Physically striking a prisoner – regardless of whether it is done with an open hand – also risks serious and potentially permanent physical injury, such as detached retinas and spinal injuries.

“Long time standing” is extremely painful and dangerous. Just as passengers on transcontinental flights are warned of the dangers of swelling and blood clots in the legs if they do not move around during the flight, forcing manacled prisoners to stand motionless for literally days on end is not only painful, but life-threatening. It has long been considered a form of torture.

After World War II, U.S. military commissions prosecuted Japanese troops for employing such “stress” techniques on American prisoners. Corporal Tetsuo Ando was sentenced to five years hard labor for, among other offenses, forcing American prisoners to “stand at attention for seven hours.”[12] A Japanese seaman named Chikayoshi Sugota was sentenced to 10 years hard labor for, among other things, forcing a prisoner to “bend his knees to a half bend, raise his arms straight above his head, and stay in this position anywhere from five to 15 minutes at a time” – treatment the Commission termed “torture.”[13]

As noted above, one of the techniques abandoned as illegal by the United Kingdom was “wall standing” – a technique in which the prisoner was forced to stand on toes spread eagled against a wall, hands above the head, with weight of the body mainly on the fingertips. In its decision the Israeli Supreme Court found that having the prisoner stand in a “stress position” on the tips of his toes for even a relatively brief period was illegal because it was “degrading and infringes upon an individual’s human dignity….”

In Hope v. Pelzer, 536 US 730 (2002), the United States Supreme Court condemned the “obvious cruelty” of leaving a prisoner in the sun in a standing stress position, calling it “degrading,” “dangerous,” and “antithetical to human dignity.” It should be noted that the Bush administration filed an amicus brief in this case in which it sided with the prisoner. The Court found that:

The obvious cruelty inherent in this practice should have provided … notice that [the guards’] alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment. Hope was treated in a way antithetical to human dignity – he was hitched to a post for an extended period of time in a position that was painful, and under circumstances that were both degrading and dangerous.

This technique has been employed by some of the world’s most repressive states, including, according to the U.S. State Department, Burma, Iran, and Libya. The Washington Times reported in 2004 that “some of the most feared forms of torture” cited by survivors of the North Korean gulag “were surprisingly mundane: Guards would force inmates to stand perfectly still for hours at a time, or make them perform exhausting repetitive exercises such as standing up and sitting down until they collapsed from fatigue.”[14]

Ironically, it was the KGB that pioneered the use of “long time standing.” Here is a description of the consequences of “long time standing” from a CIA-funded 1957 study of KGB interrogations conducted at Cornell University:

After 18 to 24 hours of continuous standing, there is an accumulation of fluid in the tissues of the legs…. The ankles and feet of the prisoner swell to twice their normal circumference. The edema may rise up the legs…. The skin becomes tense and intensely painful. Large blisters develop, which break and exude watery serum…. The heart rate increases, and fainting may occur. Eventually, there is a renal shutdown, and urine production ceases.[15]

If continued long enough, the study noted, this simple technique can lead to psychosis “produced by a combination of circulatory impairment, lack of sleep, and uremia,” a toxic condition resulting from kidney failure.

Sleep deprivation – often used in combination with standing as is reportedly the case in CIA interrogations – is a classic form of torture. This is not news. The tormentum insomniae was a recognized form of judicial torture in the Middle Ages. Six decades ago the U.S. Supreme Court cited with approval an American Bar Association report that made the following observation: “It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired.”[16]

Once again, this was a classic technique of the totalitarian police state as Robert Conquest explains in his classic work on Stalin’s Russia, The Great Terror:

[T]he basic [Soviet secret police] method for obtaining confessions and breaking the accused man was the ‘conveyor’ – a continual interrogation by relays of police for hours and days on end…. [A]fter even 12 hours, it is extremely uncomfortable. After a day, it becomes very hard. And after two or three days, the victim is actually physically poisoned by fatigue. It was as painful as any torture….

Sleep deprivation was one of the “sharpened interrogation” techniques authorized in 1942 by German Gestapo chief Heinrich Muller for prisoners with plans “hostile to the state.” In recent years, the State Department has condemned many other countries, including Iran, Saudi Arabia, and Tunisia, for employing this method, which it has called torture.

Finally, this technique was used by both the United Kingdom and Israel – until they declared that it was prohibited.

Dousing naked, freezing prisoners with cold water. It is hard to imagine that anyone could argue with a straight face that keeping naked, shivering prisoners doused with water does not amount to an “outrage upon personal dignity.” It was also prosecuted as a war crime by U.S. military commissions after World War II.[17] Nor does this technique pass the U.S. Army Field Manual test: Would it be acceptable for an enemy to do this to a U.S. prisoner? Indeed, the Field Manual explicitly bans inducing hypothermia to aid interrogation.

Waterboarding – Waterboarding was extensively used during the Spanish Inquisition, has been used by the most brutal regimes in the world, including the Khmer Rouge and the military junta in Argentina, was prosecuted repeatedly after World War II as a war crime, and is explicitly banned by the U.S. Army Field Manual.

Press reports indicate that the administration probably will not authorize this interrogation technique. Even if that is true, what is needed is an affirmative, unequivocal statement from the administration that this technique is illegal and will not be used under any circumstances. This should be easy. Even the now-discredited Bybee Memorandum on the definition of torture notes that certain acts “are of such a barbaric nature” that a U.S. court would likely find that they constitute torture.[18] According to the memorandum, this includes “threats of imminent death, such as mock executions.” This is, of course, the precise mechanism by which “waterboarding” attempts to produce information – by persuading the prisoner that he is about to die. Both foreign and U.S. personnel have been prosecuted by the United States as war criminals for using this technique,[19] it is prohibited by the Field Manual and, according to Warner, clearly constitutes a “grave breach” of Common Article 3 punishable under the War Crimes Act.

CIA “Enhanced” Techniques Constitute “Grave Violations” Under the MCA

The Military Commissions Act makes both “torture” and “cruel or inhuman treatment” felonies. It draws a distinction between the two offenses in the following manner: “torture” is defined as acts intended to cause “severe physical or mental pain or suffering.” “Cruel or inhuman treatment” involves acts that cause “severe or serious physical or mental pain or suffering.” “Severe” physical pain or suffering is not explicitly defined by statute, but U.S. federal courts have found mistreatment to constitute torture when it involved methods such as stress positions,[20] exposure to extreme cold and heat,[21] and waterboarding.[22]

For acts that occurred prior to passage of the MCA, the act requires that the “serious” mental pain or suffering cause prolonged mental harm in order to constitute the crime of “cruel or inhuman treatment.” For offenses that occur after the adoption of the MCA, the act states explicitly that the resulting “serious” mental harm “need not be prolonged” in order to amount to the felony of “cruel or inhuman” conduct.

The medical experts quoted above concerning the consequences of “enhanced” interrogation state that these techniques can have “a devastating impact on the victim’s physical and mental health.” Indeed, there is a large body of peer-reviewed medical and psychological literature and clinical experience with the “severe” mental and physical pain and suffering they can cause. But that is not required in order for an act to constitute a felony – “serious” suffering is sufficient. Likewise, clinicians with years of experience treating torture victims can provide ample testimony that these techniques cause “prolonged” mental harm. But that is also not required in order for an act to constitute a felony if the interrogation occurred after the MCA was adopted.

Future CIA interrogations that cause “serious” mental or physical suffering that need not be prolonged are felonies under the MCA and the “enhanced” techniques are calculated to cause serious suffering. It is inherent in their purpose – to cause suffering sufficiently serious to break down resistance despite determined opposition.

Conclusion

The United States is not the first democratic country that responded to a serious attack and an ongoing terrorist threat by stepping over legal boundaries that it helped create and had previously defended. But it is long past time for the United States to restate unequivocally its commitment to what President Bush once called “the non-negotiable demands of human dignity” by adopting clear interrogation guidelines that prohibit waterboarding and the other “enhanced” interrogation techniques.

Sincerely,

Open Society Policy Center
Human Rights Watch
Human Rights First
Physicians for Human Rights
Center for National Security Studies
National Institute of Military Justice
Center for American Progress

Endnotes

[1] Intelligence Science Board, Educing Information – Interrogation: Science and Art – Foundations for the Future, National Defense Intelligence College 2007.

[2] “Human Intelligence Collector Operations,” FM 2-22.3, September 2006.

[3] Nicholas Dujmovic, “Two CIA Prisoners in China, 1952–73: Extraordinary Fidelity,” Studies in Intelligence: Journal of the American Intelligence Professional, 50 (4) (2006).

[4] “Not only is torture a war crime, serious physical injury, cruel and inhumane treatment mentally and physically of a detainee is a crime under title 18 of the war crimes statute. Every CIA agent, every military member now has the guidance they need to understand the law. Before we got involved, our title 18 War Crimes Act was hopelessly confusing. I couldn’t understand it. We brought clarity. We have reined in the program. We have created boundaries around what we can do. We can aggressively interrogate, but we will not run afoul of the Geneva Conventions.” Congressional Record, September 28, 2006, pg S10393.

[5] Congressional Record, September 28, 2006, pg S10414. In other instances McCain has cited techniques that cause “extreme deprivation” such as “sleep deprivation, hypothermia and others….” (“Face the Nation,” September 24, 2006) as well as stress positions that cause serious pain and suffering.

[6] Warner addressed his remarks to the Kennedy Amendment, which listed the specific techniques banned in the Field Manual. Warner said of the techniques: “The types of conduct described in the amendment, in my opinion, are in the category of grave breaches of Common Article 3 of the Geneva Conventions. These are clearly prohibited by our bill.” Congressional Record, September 28, 2006, pg S10390.

[7] This same point was made during the House debate on the MCA by the then-ranking member of the House International Relations Committee, Rep. Tom Lantos (D-CA), who stated that the legislation would keep it “a crime to engage in serious physical abuse against detainees; it prohibits the worst of the abuses that we have seen, including those that are also banned by the Army’s new Field Manual on interrogation�???????.” Congressional Record, pg H7556.

[8] Congressional Record, pg H7554: “When I read the language in this bill – and specifically the definitions of cruel, inhumane and degrading treatment – I believe any reasonable person would conclude that all of the techniques would still be criminal offenses under the War Crimes Act because they clearly cause ‘serious mental and physical suffering.’” As will be discussed in detail below, the MCA makes it a felony under the War Crimes Act to commit the “grave breach” of “cruel and inhuman” treatment which is defined as causing “severe or serious physical or mental pain or suffering�???????.”

[9] Rep. John M. McHugh (R-NY), Congressional Record, pg H7539.

[10] Letter to McCain, September 21, 2006, signed by Allen S. Keller, MD (Program Director, Bellevue/NYU Program for Survivors of Torture), Gerald P. Koocher, PhD (President, American Psychological Association), Burton J. Lee, MD (Physician to the President for George Herbert Walker Bush), Bradley D. Olson, PhD (Chair, Divisions for Social Justice, American Psychological Association), Pedro Ruiz, MD (President of the American Psychiatric Association), Steven S. Sharfstein, MD (former President, American Psychiatric Association), Brigadier General Stephen N. Xenakis, MD (USA-Ret.), Philip G. Zimbardo, PhD (professor emeritus, Stanford and past President, American Psychological Association).

[11] Israeli Supreme Court, September 6, 1999. As the Court noted, “[a] democratic, freedom-loving society does not accept that investigators use any means for the purpose of uncovering the truth. The rules pertaining to investigations are important to a democratic state. They reflect its character. An illegal investigation harms the suspect’s human dignity. It equally harms society’s fabric�???????.”

[12] United States vs. Tetsuo Ando, Yokahama, May 8, 1947.

[13] United States vs. Chikayoshi Sugota, Yokahama, April 4, 1949.

[14] Benjamin Hu, “Nightmares from the North,” The Washington Times, April 30, 2004.

[15] Hinkle, Lawrence and Harold Wolff, “Communist Interrogation and Indoctrination of ‘Enemies of the State’,” AMA Archives of Neurology and Psychiatry, Vol. 76, pg 134 (1956).

[16] Ashcraft v. Tennessee, 322 US 143, 149 (1944).

[17] See United States vs. Matsukichi Muta, Yokahama, April 15-25, 1947.

[18] Jay S. Bybee, Memorandum for Alberto Gonzales, August 1, 2002.

[19] See United States vs. Chinsaku Yuki, Manila, 1946, and the Court-Martial of Major Edwin F. Glenn, Iloilo, the Philippines, June 7 and 14, 1901.

[20] Cicippio v. Islamic Republic of Iran, 18 F.Supp. 2d 62 (1998) (citing the chaining of plaintiff Frank Reed to a wall and shackling him in a painful position and not permitting him to stand erect among many other forms of mistreatment perpetrated by the Iranian government that the Court found to constitute torture under the Torture Victims Protection Act.); Hilao v. Marco, 103 F.3d 789 (9th Cir; 1996) (listing being chained to a cot for three days among many other forms of mistreatment perpetrated by the Filipino military against plaintiff Jose Maria Sison that were found to constitute torture under the Torture Victims Protection Act).

[21] Cicippio v. Islamic Republic of Iran, 18 F.Supp. 2d 62 (1998) (identifying exposure to the cold as a form of physical torture used by Hezbollah where plaintiff Joseph Cicippio was chained outdoors and exposed to the elements during winter which caused him to develop frostbite to his hands and feet and holding that Cicippio’s allegations of abuse constituted torture and were therefore sufficient to support a claim under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(e)); Lhanzom v. Gonzales, 430 F.3d 833 (7th Cir. 2005) (listing exposure to the cold as a form of torture used by the government of China against Tibetans as stated in the U.S. State Department Report in case remanding a Board of Immigration Appeals opinion denying an asylum claim); In re Estate of Marcos Human Rights Litigation, 910 F.Supp. 1460,1463 (1995) (describing the method used under the Marcos regime in the Philippines of “[f]orcing a detainee while wet and naked to sit before an air conditioner often while sitting on a block of ice” as a “form of torture.”)

[22] See Hilao v. Marco, 103 F.3d 789, 790 (9th Cir; 1996) (called it “water torture” where “all of [the plaintiff’s] limbs were shackled to a cot and a towel was placed over his nose and mouth; his interrogators then poured water down his nostrils so that he felt as though he were drowning.”); In re Estate of Marcos Human Rights Litigation, 910 F.Supp. 1460, (1995) (describing many uses of suffocation used by the Marcos regime including “the ‘water cure’, where a cloth was placed over the detainee’s mouth and nose, and water poured over it producing a drowning sensation; “the ‘wet submarine’, where a detainee’s head was submerged in a toilet bowl full of excrement;” and “the ‘dry submarine,’ where a plastic bag was placed over the detainee’s head producing suffocation.”)

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