The Detainee Treatment Act requires that “no person in the custody or under the physical control of the United States be subject to torture or cruel, inhuman, or degrading treatment or punishment (CIDT).”xvi The DTA defines CIDT as conduct prohibited by the 5th, 8th, or 14th Amendments to the U.S. Constitution.
Adverse Physical and Mental Consequences
Medical literature clearly establishes that tactics such as the CIA’s reported “enhanced interrogation techniques cause the types of physical and mental anguish that are criminalized under the WCA and other laws. In a letter sent to Senator John McCain during the height of the MCA debate, several leading medical and psychological experts, including current and past presidents of the American Psychiatric Association and the American Psychological Association, conveyed this collective knowledge:
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 (which may still be authorized), among other reported techniques, can have a devastating impact on the victim’s physical and mental health.xvii
The pain and suffering arising from the individual and combined use of water-boarding, hitting, induced hypothermia, prolonged bombardment with loud music and flashing lights, stress positions, total and long-term isolation, and other “enhanced” interrogation techniques is directly related to the purpose of these techniques: to “break” detainees, mentally and physically.xviii The medical consequences of such abuse have been well-documented through years of research and treatment of survivors of violence and severe trauma.
Some of the enhanced techniques, particularly water-boarding, hitting, induced hypothermia, and stress positions are capable of causing “severe” or “serious” physical pain and suffering, the intentional infliction of which violates the “torture” and “cruel and inhuman treatment” provisions of the WCA. Each of the techniques can also cause significant psychological harm. According to one recent study, in fact, the significance of the harm caused by non-physical, psychological abuse is virtually identical to the significance of the harm caused by physical abuse.xix
This mental harm can take many different forms, including:
• Posttraumatic stress disorder (PTSD), manifested in: prolonged, recurring flashbacks and nightmares; significant impairment and instability in life functions; suicidal ideation; and, weakened physical health, among other consequences.xx Rates of PTSD range from 45% to 92% of torture survivors, subjected to both physical and mental torture. xxi
• Depressive disorder manifested in self-destructive and suicidal thoughts and behavior, and other characteristics.xxii
• Psychosis, in the form of delusions, bizarre ideations and behaviors, perceptual distortions, and paranoia, among other manifestations.xxiii
These techniques, moreover, are generally used in combination xxiv – prolonged isolation, for example, combined with sleep deprivation, light and sound bombardment, and exposure to cold – compounding their devastating psychological impact.
The Legal Risk Under U.S. Law
Given this body of medical and psychological knowledge, officials who authorize these techniques place themselves and those who engage in them at enormous risk: namely, that in future trials involving the War Crimes Act, courts will be presented with credible and compelling evidence of harm, provided by medical and psychological experts skilled in the documentation of physical and psychological consequences of torture and ill-treatment, in accordance with internationally accepted protocols.xxv It is the responsibility of the Executive Branch to ensure that its agents abide by the law. If instead it purports to authorize acts that violate the law, agents who carry out those acts will be put at risk of prosecution for serious crimes.
Conclusion and Recommendations
This report demonstrates that “enhanced” techniques of interrogation, whether practiced alone or in combination, may cause severe physical and mental pain. In fact, the use of multiple techniques of “enhanced” interrogation virtually assures the infliction of severe physical and mental pain upon detainees. Given this knowledge, U.S. policy makers and interrogation personnel should understand that if such methods are practiced, it would be reasonable for courts to conclude that the resulting harm was inflicted intentionally. The interrogation techniques analyzed above - and other techniques that have comparable medical consequences - implicate legal prohibitions and could result in felony criminal prosecutions. It is therefore inappropriate that any such techniques be available for use by U.S. personnel in interrogations, and it is the responsibility of U.S. policy makers to ensure that the use of such techniques is effectively precluded.
In issuing interrogation policy, the United States should refrain from repeating the mistake of allowing euphemistic descriptions of interrogation techniques to stretch the line between permissible and impermissible treatment. Instead, all U.S. agencies should firmly adhere to a single bright line standard of humane treatment that protects the lives and health of individuals in U.S. custody.
