Memos Suggest Legal Cherry-Picking in Justifying Torture

Created: August 27, 2009 06:00 | Last updated: July 31, 2020 00:00

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On the same day that the government produced the 2004 CIA inspector general’s report on interrogations, it also turned over seven more memos and letters from the Justice Department’s Office of Legal Counsel. The memos released on Monday were the Justice Department’s legal justifications for continuing to use those controversial interrogation techniques, despite a new law passed by Congress and an intervening landmark Supreme Court ruling that governs U.S. detentions overseas.

The Office of Legal Counsel is where John Yoo and Jay Bybee, beginning in 2002, wrote a series of what came to be called the “torture memos,” defining torture so narrowly and the law so permissively that near-drowning, prolonged sleep deprivation, stress positions and many more “enhanced interrogation techniques” were deemed legal. Yoo also concluded that the Bill of Rights didn’t apply to certain executive action during wartime, even in the United States.

Illustration by: Matt Mahurin Illustration by: Matt Mahurin

The more recent documents, written by Steven Bradbury, who became acting assistant attorney general and head of the OLC in 2005, were the Justice Department’s attempts to deal with the ways the law had changed in the intervening years – and the clarifications from the Supreme Court that certain basic international laws, like portions of the Geneva Conventions, do apply to terror suspects held abroad.

What experts say is surprising about the 2006 and 2007 memos released on Monday, however, is how little the legal analysis changed, despite the new legal backdrop that had emerged, and how selectively the lawyers chose which laws and cases to apply.

In 2005, after photographs surfaced showing U.S. troops abusing Iraqi inmates at the Abu Ghraib prison in Baghdad, Congress passed the Detainee Treatment Act specifically to outlaw the “cruel, inhuman or degrading treatment” of detainees that was plain for all to see. The next year, the Supreme Court ruled in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applies to “war on terror” detainees. Attorney General Alberto Gonzales had famously called the Geneva Conventions a “quaint” relic of the past.

But the CIA still wanted to use many of the controversial interrogation techniques it had adopted, based in part on the advice of two psychologists and businessmen with no interrogation experience. In particular, as is set forth in the recently released Office of Legal Counsel memos, the CIA still wanted to use six techniques, including prolonged sleep deprivation, food deprivation, shackling, forced standing in stress positions, and a variety of “corrective techniques” that include physical slaps and grabs – all of which would be used alone, or in combination.

Despite the intervening change in the legal landscape, legal experts who have reviewed the memos say that strangely, the analysis remained essentially the same.

“It’s surprising how little the analysis in this memo changed from the past memos, notwithstanding the passage of the [Detainee Treatment Act] and the Supreme Court’s decision in Hamdan,” said American Civil Liberties Union national security project lawyer Alex Abdo.

The July 2007 opinion, for example, analyzed whether prolonged sleep deprivation for up to 96 straight hours (or 180 hours in a 30-day period) while a prisoner is forced to stand, shackled, in diapers, and eventually in his own urine and feces violates the Detainee Treatment Act and Geneva Conventions’ prohibitions on “cruel, inhuman and degrading treatment”.

The Justice Department lawyers concluded that it does not violate either law, even if the sleep deprivation is combined with restriction to a 1,000-calorie-a-day diet (half the recommended daily human intake) of liquid formula, and with “corrective techniques” such as the “facial hold,” “facial slap,” and “abdominal slap”.

The rules are not violated because the CIA has determined that such techniques are “safe”, concludes the memo, meaning they cause no “serious,” permanent or long-lasting injury.

The lawyers are confident of that conclusion because “the CIA adapted each of the techniques from those used in the United States military’s Survival, Evasion, Resistance, and Escape (“SERE”) training,” which is “designed to familiarize U.S. troops with interrogation techniques they might experience in enemy custody and to train these troops to resist such techniques.”

Although the lawyers recognize “that a detainee in CIA custody will be in a very different situation from U.S. military personnel who experienced SERE training, the CIA nonetheless found it important that no significant or lasting medical or psychological harm had resulted from the use of these techniques on U.S. military personnel over many years in SERE training.”

That’s the same reasoning the OLC used to justify waterboarding and other techniques in its Aug. 1, 2002 memo.

The Aug. 31, 2006 Office of Legal Counsel memo goes on to say that the techniques don’t “shock the conscience” – the same standard the lawyers used in 2005 to say the CIA’s interrogation techniques didn’t violate the international Convention Against Torture.

In effect, in the Justice Department’s view, despite the new law and Supreme Court interpretation, nothing had changed.

“Especially following the DTA you’d think it would no longer be okay to beat someone up for information,” said Abdo. “At the end of the day, that for me is what this 2007 memo amounts to. The techniques of sleep deprivation, dietary manipulation—you’d think that was precisely what Congress was focused on when it passed the DTA. It’s surprising how much of the techniques survived the new law,” he said. The memo is “dodging bullets fired at the CIA by Congress and the Supreme Court.”

The lawyers similarly interpreted the Geneva Conventions to add nothing new to the equation. In 2006, the Supreme Court ruled that Common Article 3 applies to detainees held by the United States overseas, notwithstanding the Bush administration’s strenuous arguments to the contrary. Common Article 3 requires the “humane treatment” of all prisoners. But the July 2007 memo interprets that to not even require the U.S. government to report the prisoners’ existence to the International Committee of the Red Cross, for example.

That’s a strangely narrow reading of the Geneva Convention’s requirements, said Jamil Dakwar, an expert on international law and director of the ACLU’s Human Rights Program. In a “non-international conflict,” which is how the Supreme Court defined the United States war with al Qaeda and the Taliban, “Common Article 3 talks about allowing the ICRC to offer its services,” says Dakwar. If the government does not inform the ICRC of the prisoners’ existence, however, the organization cannot offer any services.

In general, “there’s a gap between the way the United States interpreted international law, and the way the rest of the world interprets it,” says Dakwar. “In non-international armed conflict, human rights law, such as the U.N.’s Covenant on Civil and Political Rights should be applicable,” he said. But the Bush administration said it did not apply, so it examined the techniques only as narrowly as possible under Article 3 of the Geneva Conventions. That several international courts and human rights committees have disagreed with the Bush administration’s conclusion did not alter its analysis.

The International Committee of the Red Cross in its commentaries, for example, stresses that Common Article 3 does not apply in isolation, but in conjunction with the laws of the country where the prisoners are held, and that country’s interpretations of international human rights law. In the OLC memos, however, “the assumption is that we created secret detention, we can’t operate them anywhere but in secret, so this is an excuse to ignore all other laws,” says Dawkar. “So you see here cherry-picking of what kinds of protections the detainees will be afforded.”

Even when the memos rely on U.S. law, the comparisons between terror suspects held for years in secret CIA prisons and detainees held in U.S. prisons with the full panoply of constitutional rights often don’t make sense. For example, the memos evaluate the legality of conditions of overseas detention by relying on cases interpreting the Eighth Amendment prohibition of cruel and unusual punishment, although those cases only pertain to prisoners who have been charged and convicted of a crime in a U.S. court. In these cases, although the memos repeatedly assume that the detainees are “extremely dangerous,” none has even been charged with a crime, let alone convicted of anything. Similarly, cases governing pre-trial detention conditions in the United States, where a suspect is awaiting trial and has a right to a lawyer, aren’t applicable to detainees who may be held incommunicado — unable to speak to other inmates or contact anyone in the outside world — in secret detention with no rights at all for years.

“They pick and choose Supreme Court cases that talk about Eighth Amendment law without addressing the difference in the context,” said Dakwar. “I found that amazing.”

Where the Aug. 31, 2006 memo does note a difference in circumstances, it is to emphasize that terror suspects “are not ordinary accused criminals; instead, they are extremely dangerous, and often quite sophisticated, terrorist enemy combatants detained because they pose a serious and direct threat to the national security of the United States.” The memo thereby assumes the detainees’ guilt, and justifies the conditions of detention accordingly.

The memo also dismisses the impact of being held incommunicado. “They say it doesn’t matter because they have access to books, music and movies,” notes Dakwar. “That is fundamentally unacceptable by all authorities. The fact that you have no contact with other people is the issue. Having newspapers or movies does not make the confinement less severe.”

Indeed, in in the New Yorker in March, Harvard Medical School Professor Atul Gawande cites a range of experts and torture victims, including Sen. John McCain (R-Ariz.), who refer to long-term solitary confinement as more agonizing than physical abuse and ultimately, a form of torture. (Prolonged isolation, Gawande finds, actually creates physical abnormalities in the brain.)

To compare the temporary isolation of a convicted criminal or pretrial detainee to prolonged isolation of a terror suspect in a secret overseas prison, then, makes no sense, says Dakwar. “These are two unparalleled situations,” he said.

In general, the memos “cherry-pick the law and cases that they want to apply,” says Dakwar. For example, the memos rely on interpretations by the International Criminal Court, even though the United States, and particularly the Bush administration, opposed the creation of the ICC and don’t recognize its legitimacy. “Yet it utilized those interpretations in defense of their unjustified practices.”

The other strange thing about the memos is that in parts, they analyze the conditions of the detainees’ confinement — the physical conditions of their cells and whether they were provided with food and water and allowed to sleep, for example — separately from their treatment during interrogations, which sometimes specifically included sleep and food deprivation. And portions of the conditions’ descriptions — for example, the way prisoners’ cells are illuminated 24-hours a day — are redacted, and therefore incomplete. That makes it almost impossible to consider the legality of the conditions as a whole. “Alone, a condition may not amount to a violation, but in certain circumstances, a combination of techniques and methods would constitute cruel, inhuman and degrading treatment, or could even rise to the level of torture,” said Dakwar.

Certain combinations of treatment that violate the Geneva Conventions could also rise to the level of war crimes, which may be why the Office of Legal Counsel was so eager to define all of the CIA’s actions as falling well within the bounds of international law.