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Interrogation Law Is a Secret:

The Senate Judiciary Committee would like details on what the Justice Department considers to be the legal limits on coercive interrogation techniques (i.e. where harsh-but-permissible interrogation techniques end and torture or otherwise illegal conduct begins). The Justice Department says no dice. Regardless of one's views of the proper limits of legal interrogation, this should be troubling. As Marty Lederman comments:

there is usually very good reason for not disclosing information on exactly which tactics and methods the CIA has actually used on which detainees, and which techniques have been successful. Much of what the CIA does around the world is kept secret, at least in the short run. But I remain unconvinced that it is necessary to classify the legal limits on the CIA's interrogation techniques -- i.e., to have a secret law that the public and the Congress cannot know about.

J. F. Thomas (mail):
And I thought the purpose of the Military Commissions Act was to clarify what was permissible. At least that's what the president told us. I guess that was just another lie. I'm so shocked.
1.3.2007 12:31pm
Justin (mail):
I don't even buy Professor Lederman's concession to the government. The interest in a democratic system committed towards freedom and human rights, and democratic deliberation on such an important part of that commitment, clearly outweighs the minor advantages the CIA has to any "element of surprise" in interrogation techniques. I'm unconvinced that if the terrorists got a hold of how the CIA tortures people, they'd be able to keep those people from divulging what they know - and that's given that torture is an acceptable technique to use in the first instance.

If the type of interrogation tactics used inflict as much pain and distaste that the proper cure (in the terrorists mind) is anti-torture training, I think its safe to say that the Constitutional ban on cruel and unusual punishment (that was specifically referenced by the US in signing the Geneva Convention) has long been left in the dust.
1.3.2007 12:33pm
JunkYardLawDog (mail):
I would imagine that its important to keep secret the limits of what we do and don't do, so those wanting to explode a nuclear device in the middle of a major city can not know when the limit has been reached so as to keep up the psychological pressure on the handful of people out of 6 billion on the planet that have such treatment reserved for them.

I don't have a problem with the limited kind of intelligence committee disclosures applicable to the nations top military secrets, but even that doesn't guarantee that this militarily valuable information doesn't end up on the pages of some traitorous news organizations like the New York Times.

Says the "Dog"
1.3.2007 12:52pm
Justin (mail):
"24! It's not just a sensationalist television show...its a legal theory!"
1.3.2007 12:58pm
e:
Should we also question why resistance training given to US military members in case of capture is classified?

Military leaders are understandably concerned about setting a precedent for true torture, but they also recognize the reality that their troops have generally (if not universally) been accorded less protection when captured.

Under the broadened definitions of torture that many academics seem to adopt, almost all military members have been tortured as part of their service. Sleep deprivation, emotional scars, and even the immasculation some might feel from having to follow orders are tortuous especially with the growth industry of syndrome creation.

Apart from torture, the question of cruel and unusual punishment and humiliation remains. Secrecy still seems important to me as it is always easiest to endure something when you know its bounds. Everyone will squeal, but I'd be more likely to talk (or babble nonsense) if in a foreign jail than in US custody. Of course our limits are already known to some extent, which is why foreign prisoners mostly prefer US treatment to the alternatives. I think I understand that many critics of the current administration simply want to maintain this higher standard, but am not convinced that complete declassification is necessary to that goal.

A question: Is there any valid argument suggesting the inapplicability of the cruel and unusual standard, however defined, when the treatment is not actually "punishment?"
1.3.2007 1:06pm
Thorley Winston (mail) (www):
I don't have a problem with the limited kind of intelligence committee disclosures applicable to the nations top military secrets, but even that doesn't guarantee that this militarily valuable information doesn't end up on the pages of some traitorous news organizations like the New York Times.


After 9/11 someone made the excellent point about why some foreign intelligence services were reluctant to share information with the United States. It seems that because so many members of the House and Senate have access to or try to have access to classified information that it increases the likelihood of a leak which could compromise their source. If the Intelligence Committee had asked for the information that's one thing but Leahy is looking to grandstand and the DOJ was right to tell him to go pound sand.
1.3.2007 1:18pm
ATL (mail) (www):

Under the broadened definitions of torture that many academics seem to adopt, almost all military members have been tortured as part of their service. Sleep deprivation, emotional scars, and even the immasculation some might feel from having to follow orders are tortuous especially with the growth industry of syndrome creation.


And that's just in boot camp.
1.3.2007 1:20pm
A.S.:
Lederman's post is nonsensical.

There is no secret law - the relevant statutes and treaties are on the books for everyone to see. If al Qaeda wants to hire a lawyer to parse the statutes and treaties, it is free to do so, just as Lederman and everyone else is. The "legal limits" of the government's conduct are defined by those perfectly open laws, not by DOJ.

What Leahy is asking for is not any "secret law", but the DOJ's opinion as to what those (again, perfectly open) laws mean. I don't see why al Qaeda should be entitled to know DOJ's opinion as to what the laws mean.

Moreover, I don't see the difference between "not disclosing information on exactly which tactics and methods the CIA has actually used" and not disclosing information on exactly which tactics and methods the CIA may in the future use. In both cases, those tactics are kept secret so that al Qaeda cannot prepare its operatives to defend against them.

Let's look at it this way - suppose there are 5 tactics: A, B, C, D, and E. You, me, Lederman, al Qaeda, and DOJ can all review the relevant statute and treaty to determine that E is legally prohibited. Why does Leahy need to publicize a DOJ memo stating that, in DOJ's opinion, A, B, C, and D are not prohibited? If we currently only use A and B, then Lederman seems to acknowledge that we should not publicize that we use A and B. But why does Lederman think we should publish a DOJ memo that says that, in DOJ's opinion, C and D are not prohibited but E is prohibited? Any uncertainty only redounds to our benefit - al Qaeda has to spend money on a lawyer to determine that E is prohibited, or else has to prepare its operatives against E (thereby wasting their time and effort). And al Qaeda can either spend its time and effort preparing against C and D (assuming its lawyer determined that C and D are permitted and it believed the time and effort is worth it), or it can decide not defend against C and D (either becuase its lawyer wrongly determined that C and D are not permitted or because it believed the time and effort is worth it) thereby making its operatives less successful as defending against C and D. It seems to me that we get a certain benefit by keeping secret DOJ's opinion that C and D are not prohibited but E is prohibited, whereas there is no benefit at all to publicizing that opinion.
1.3.2007 1:39pm
Mark Field (mail):

After 9/11 someone made the excellent point about why some foreign intelligence services were reluctant to share information with the United States. It seems that because so many members of the House and Senate have access to or try to have access to classified information that it increases the likelihood of a leak which could compromise their source.


This begs the question. The issue is not how far to distribute secret information, it is whether this information should be considered secret at all.
1.3.2007 1:40pm
Mr. X (www):
What Leahy is asking for is not any "secret law", but the DOJ's opinion as to what those (again, perfectly open) laws mean. I don't see why al Qaeda should be entitled to know DOJ's opinion as to what the laws mean.


Senator Leahy and the Senate Judiciary Committee are a branch of al Qaeda?

Who knew?
1.3.2007 2:01pm
Actual (mail):
JF Thomas --

Can you provide a link to the part of the Military Commissions Act that provides a list of allowed techniques? Why did you think it did? Can you provide a link to or quote of the President's alleged "lie"?

Justin --

Why do you conflate interrogation techniques with punishment. I do not think that the prisoners are being punished, but rather coerced into providing information.

"…I think its safe to say that the Constitutional ban on cruel and unusual punishment (that was specifically referenced by the US in signing the Geneva Convention)…"

What did the US specifically reference when the Geneva Convention(s) were signed? Any links?

My own view is that neither the Geneva Convention or the Constitution is applicable to Francs-tireurs.
1.3.2007 2:08pm
A.S.:
Senator Leahy and the Senate Judiciary Committee are a branch of al Qaeda?

Jeez. The point, obviously, is their public disclosure, which would happen if they were disclosed to Leahy. As the DOJ letter notes, the Administration HAS disclosed information about the programs to the committee that is required to keep secret information secret - the intelligence committee. The concern is disclosure to committees that will not (and have no obligation to) keep the information secret.
1.3.2007 2:16pm
J. F. Thomas (mail):
Under the broadened definitions of torture that many academics seem to adopt, almost all military members have been tortured as part of their service.

Excuse me, but it is the Administration that has consistently attempted to narrow the definition of torture and ignore the fact that merely not torturing detainees, regardless of their status, is not sufficient under U.S. or international law. They both also prohibit cruel, inhuman and degrading treatment. If you do not understand the difference between training to resist such treatment or even physical and mental stress during ordinary training and that inflicted involuntarily upon people who have been stripped of all legal rights and are completely under the control of a hostile force, you are just too dense to be commenting on this blog.
1.3.2007 2:39pm
J. F. Thomas (mail):
The point, obviously, is their public disclosure, which would happen if they were disclosed to Leahy. As the DOJ letter notes, the Administration HAS disclosed information about the programs to the committee that is required to keep secret information secret - the intelligence committee. The concern is disclosure to committees that will not (and have no obligation to) keep the information secret.

And the problem with their public disclosure is? The Army Field Manual on Interrogation is a public document. That is the standard for the military's treatment of detainees, whether they are unlawful combatants, Al Qaeda or whatever. Why shouldn't the CIA rules be publicly available too? Actually, the Army Field Manual should be the standard for the entire government.
1.3.2007 2:43pm
Houston Lawyer:
As I recall, McCain originally pushed to have the standards from the Army Field Manual written into law, but that was not adopted. I don't believe that public disclosure of all acceptable interrogation techniques is required. As another poster pointed out, the uncertainty in the mind of the person being interrogated works to our benefit.
1.3.2007 2:50pm
e:
JFT,

You are excused. You started to lose me at the assumption-coupled insult which ignores the part of my original post starting "Apart from torture..." I did/do assume that one can analogize without always pointing out that analogies are rarely perfect. Military members in some ways do cede rights. That does inform somewhat on the question of treatment, if only to illustrate that the scope of degredation can range from true barbarism to baby gloves fear of offending any member of the modern victimhood culture. Beyond detainees, some people may feel degraded that imaging security devices can reveal their body contours. A perfectly valid response, which society might not agree on, is "grow up, your skin's too thin." Empathy is a virtue, within limits. I realize it is sometimes easier to speak without nuance, but this thread would not exist if the suspects were truly "stripped of all legal rights."
1.3.2007 3:08pm
J. F. Thomas (mail):
You started to lose me at the assumption-coupled insult which ignores the part of my original post starting "Apart from torture..." I did/do assume that one can analogize without always pointing out that analogies are rarely perfect.

Excuse me again? Your analogies are completely irrelevant and your dismissing the brutality that even the government admits that has been meted out on detainees, resulting in dozens of admitted deaths (lord knows how many concealed ones), as "academic" definitions of torture or something that our soldiers experience routinely as part of their service; and now you try to compare to back scatter x-rays, shows how unserious and lacking in empathy you are.

Consistently, the administration, and apologists for it like you have tried to pretend that we are not mistreating detainees, while at the same time trying to conceal exactly what the standards of treatment are. "We don't torture people but don't ask us to tell you what we consider torture" is the attitude this administration takes. Now they are even trying to block lawsuits by former detainees claiming that the interrogation techniques themselves are classified and that the detainees possess state secrets which they cannot reveal.
1.3.2007 3:32pm
Oren (mail):
Just for a lark, let's remember that KSM was considered amazing for resisting waterboarding for 2 whole minutes. According to ABC news (LINK)


According to the sources, CIA officers who subjected themselves to the water boarding technique lasted an average of 14 seconds before caving in. They said al Qaeda's toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before begging to confess.


There is no training against waterboarding. It works. Every time. Quickly. Disclosing it might be a political or diplomatic embarrassment but has no operational relevance whatsoever.
1.3.2007 3:45pm
Al Maviva (mail) (www):
Why not make a detailed discussion and analysis of our lawful interrogation techniques a matter of public record? It's not like AQ would use it against us or anything. And even if they did, what's the downside? Why nothing, at least not for Marty.
1.3.2007 3:51pm
e:
JFT, yeah, I'll excuse you again, despite the tone. I do see grey areas which I now realize you either don't see or don't want to discuss. That's fine, but saying that I compared hands off security devices (which may still be seen to degrade) to torture ignores that I was obviously showing that there is a spectrum along with real line drawing questions. Pointing to deaths in custody shows that our nation has problems, but doesn't say anything about a torture policy unless you truly believe or have evidence that the deaths resulted from a policy rather than individual acts or even systematic supervisory failings. I never stated or pretended that I support or apologize for all actions of and under the current administration, but I suppose that is your style. I may be dense, uncaring, unempathetic, and unserious, but do think that there is room for talking without retreating to poles.

Honestly I probably don't get it, as you say. Publicizing "99 minutes without bathroom, milk, and cookies break is okay, but 100 minutes is unacceptable," or "removal by infidel of koran pages used to clog toilet crosses the line" is the only way to define the limit, and interrogators should be expected to push close to any limit with their techniques. Classification doesn't mean that courts cannot review and help to refine the line.

Disclaimer: my use of silly examples at one end of the spectrum does not mean that I'm unaware of reports and reality that suspects suffer punishment and lack of process.
1.3.2007 5:03pm
J. F. Thomas (mail):
Honestly I probably don't get it, as you say. Publicizing "99 minutes without bathroom, milk, and cookies break is okay, but 100 minutes is unacceptable," or "removal by infidel of koran pages used to clog toilet crosses the line" is the only way to define the limit, and interrogators should be expected to push close to any limit with their techniques. Classification doesn't mean that courts cannot review and help to refine the line.

How am I supposed to take you seriously when this is your example. Obviously, you are not serious about this. We are not talking about bathroom and milk and cookie breaks. You also queried above whether the there was a loophole because interrogation wasn't punishment and thus couldn't be considered "cruel and unusual punishment".

So lets stop talking about coddling detainees and talk about the realities. It seems that safe to assume the administration has used waterboarding as an interrogation technique. It has refused to say whether it considers waterboarding a form of torture (even though the State Department has cited waterboarding as torture technique when condemning other nations' human rights abuses) and when specifically asks about its use refuses to confirm or deny whether the technique is being used. There have been numerous leaks about the use of waterboarding and the effectiveness of it. You will be hard pressed to find a human rights or international organization (or your dreaded academics) that does not condemn waterboarding as torture. If the Administration's definition does not include waterboarding as torture, then it not only flies in the face of international norms, but longstanding policies of its own state department.

Another method that the Administration has publicly admitted has been used is induced hypothermia. This particular method is extremely dangerous as it quickly lead to death and has resulted in at least one death. It is also of questionable use as hypothermia causes confusion, delusions, and hallucinations. I don't know what kind of useful information you could get out of a person in such a state.

You apparently missed my point about the Army Field Manual. In spite of your snark, that is exactly what it does say and has said for over fifty years. Despite pressure from the civilian leadership of the Pentagon to allow harsher interrogation techniques, the uniformed services (the Field Manual, although published by the Army is actually a joint services document) left the strict prohibitions against physical coercion in place when the new field manual was published last year. If the military doesn't think it needs to use physical coercion to garner useful and time sensitive intelligence (or at least believes the tradeoff is not worth it), why can't the rest of the government manage under the same rules?
1.3.2007 5:40pm
e:
Regarding snarkiness, I tried to not reply in kind with purely pointless insults, but apologize for any failure.

Regarding a supposed connection between my seriousness and query about "loophole," I may not be making the same connection between morality and legality. I did and do wonder about whether the constitutional limit on punishment applies to action with a primarily non-punitive purpose, and guess that it must, but do not think legality would necessarily justify my government's cruelty.

On your point, I'll admit that I do not know all the language in the Army Field Manual, but do not think that "physical coercion" is immune from further clarification. Does it cover fake menstrual blood, opposite sex interrogators, failure to observe all customs of the suspect? I'm not sure, but doubt it. You appear more concerned about physically rather than mentally damaging treatment, but I am just not as certain that practices should be banned if they can be physically safe. Opening the door to mental effects is highly problematic, and I think it is both impossible and inadvisable to try to ban any treatment which might be degrading. Thanks for sharing your views.
1.3.2007 6:19pm
Anderson (mail) (www):
Does it cover fake menstrual blood, opposite sex interrogators, failure to observe all customs of the suspect?

Humiliation is prohibited by treaty. As for the "all customs" straw man, has anyone ever proposed that standard? As opposed to (just in the last story I saw -- these are FBI reports) squatting over a Qur'an like you're going to defecate on it; wrapping a Muslim in the Israeli flag; wrapping duct tape around a bearded prisoner's head to punish him for reciting the Qur'an ...

Once the door is opened to anything other than treating the prisoner with basic human respect, you get the kind of crap that little kids would come up with. And if you want to see how the little kids justify their deviltry, check out a VC comment thread.
1.3.2007 7:34pm
e:
Defining "basic human respect" seems to be the big problem when I look at the world and commentary on this and related topics. Somewhat comforting that the big kids aren't in the dark on that line.
1.3.2007 7:58pm
e:
I do like the sentiment, but being in a treaty doesn't clarify the meaning of words or prevent future political contraction and expansion. Especially words like humiliation.
1.3.2007 8:00pm
Thorley Winston (mail) (www):

wrapping duct tape around a bearded prisoner's head to punish him for reciting the Qur'an ...


Here's what actually happened:

In his testimony, the ICE Chief testified that he had a situation in which a detainee was screaming resistance messages and potentially provoking a riot. At the time of the incident there were 10 detainees in the interrogation section and the ICE Chief was concerned about losing control of the situation. He directed the MPs to quiet the detainee down. The MP mentioned that he had duct tape. The ICE Chief says he ultimately approved the use of duct tape to quiet the detainee. The MP then placed a single strand of duct tape around the detainee's mouth. The single strand proved ineffective because the detainee was soon yelling again. This time the MPs wrapped a single strand of duct tape around the mouth and head of the detainee. The detainee removed the duct tape again. Fed up and concerned that the detainee's yelling might cause a riot in the interrogation trailer, The ICE Chief ordered the MPs to wrap the duct tape twice around the head and mouth and three times under the chin and around the top of the detainee's head. According to an FBI agent, he and another FBI agent were approached by the ICE Chief who was laughing and told the agents that they needed to see something. When the first agent went to the interrogation room he saw that the detainee's head had been wrapped in duct tape over his beard and his hair. An interrogator testified that another interrogator admitted to him that he had duct taped the head of a detainee. According to the first agent, the ICE Chief said the interrogator wrapped the detainee's head with duct tape because the detainee refused to stop "chanting" passages from the Koran.


Funny the difference that a little context makes.
1.3.2007 9:19pm
arbitraryaardvark (mail) (www):
An example of a secret law came up in Gilmore v Gonzales papersplease.org/gilmore. The TSA was claiming that a secret law required airline passengers to show ID. There was some law that said something,and was disclosed in camera to the judge, but there was no law requiring ID. I recently flew for the first time since 9/11 and did not have to show ID,although the signs still say everyone has to.
In The Seven Pillars of Wisdom, Lawrence of Arabia explains that it was atrocities by the Turks which united and inspired the successful Arab insurgency. Torture is a quick way to lose the hearts and minds of the people. Failing to disclose one's torture policies might or might not be a quick way to lose the hearts and minds of the newly Democratic congress.
I've been tortured myself, by a private prison company,am in litigation about it, and seek representation.
1.4.2007 12:53am
Ken Arromdee:
Humiliation is prohibited by treaty.

So if we capture some KKK members, treaty would prohibit using black soldiers to question them?

"Humiliation" which only humiliates because of the prisoner's bigotry shouldn't count. The only reason the prisoners are humiliated by being questioned by women (and 95% of the reason they are humiliated by menstrual blood) is that they consider women to be lower than dirt. We have no moral obligation to respect that belief in any way whatsoever.
1.4.2007 1:08am
Katherine:
Oh, for God's sake. It could not be more obvious that they concluded that hypothermia and waterboarding were legal. I know it, you know it, and yes, any al Qaeda operative out there who's been paying any attention also knows it. This is about hiding evidence, nothing more.
1.4.2007 1:58am
Anderson (mail) (www):
Here's what actually happened:

You want to believe the jailers &not the FBI? Fine. I don't.

(and 95% of the reason they are humiliated by menstrual blood)

Really? You think smearing (pretend) menstrual blood on non-Muslim prisoners's faces isn't humiliating?

I don't believe you, or your good faith, for a second. Feel free to ignore my comments in future.
1.4.2007 9:11am
A.S.:
You want to believe the jailers ¬ the FBI? Fine. I don't.

See, that's the basic difference between the right and the left. As between our military and al Qaeda, the right believes our military and the left believes al Qaeda.

It's awfully telling.
1.4.2007 10:15am
Mark Field (mail):

See, that's the basic difference between the right and the left. As between our military and al Qaeda, the right believes our military and the left believes al Qaeda.


I only see a basic difference between posters who respect the facts and those who don't. You completely misrepresented what Anderson said and then used that misrepresentation as the basis for insult rather than reasoning. Proud day for you?
1.4.2007 11:43am
Al Maviva (mail) (www):
Anderson, you're wonderful. I love the people who hang their hats on 'humiliation.'

Tell me, is anything more humiliating to a Salafist man, than to be abused by a woman?

The answer, of course, is no, hence the fake menstrual blood interrogation approach, scantily dressed female interrogator, etc.

Then how do we deal with the problem posed by female military police, pilots and interrogators? Is it not by definition humiliating for Salafists to be shot at, killed, captured, processed, or spoken to by female soldiers and Marines? Oughtn't we be fighting this war on a men-only basis?

This is not snark, I have yet to hear one of you radical literalists (a displaced species in the world of treaty interpretation) explain to me how any use of women in the GWOT or law enforcement or military, is not highly humiliating to Al Qaida and their allies throughout the Arab and Muslim world, and thus a facial violation of the Third Conventions and therefore a war crime.

Go ahead, change the subject.
1.4.2007 1:08pm
Mark Field (mail):

This is not snark


Hmm.


I have yet to hear one of you radical literalists (a displaced species in the world of treaty interpretation)


Textualism is only permitted when it comes to the Constitution?


explain to me how any use of women in the GWOT or law enforcement or military, is not highly humiliating to Al Qaida and their allies throughout the Arab and Muslim world, and thus a facial violation of the Third Conventions and therefore a war crime.


I don't purport to speak for anyone but myself on this, notwithstanding the repeated efforts to lump everyone together as "liberals" "the left" or "radical literalists" or whatever. My personal answer to you is that all these terms should be interpreted according to a reasonable person standard.

In the larger sense, this whole debate is misguided. Treaties, like Constitutions and frequently even statutes, tend to use words which are very general. It's only by the actual implementation of them that we work out the more precise details of application. That, after all, is what a common law system is good at.
1.4.2007 3:06pm