"Enhanced" Interrogation Techniques: The Risk of Criminality

In response to Friday's Executive Order authorizing the CIA to resume abusdive interrogations of "enemy combatants" in its custody, two of the NGOs leading the fight against torture have released a summary of their forthcoming report on the CIA's "enhanced techniques." [For an Analysis of the Executive Order, see Marty Lederman at Balkinization.]

For anyone thinking that the new CIA program will be substantially different than the old one -- described in detail online by Vanity Fair last week -- nearly universally condemned as torture, this quote from an Administration official is not comforting:

"CIA detainees have also alleged they were left naked in cells for prolonged periods, subjected to sensory and sleep deprivation and extreme heat and cold, and sexually taunted. A senior administration officials briefing reporters yesterday said that any future use of 'extremes of heat and cold' would be subject to a 'reasonable interpretation . . . we're not talking about forcibly induced hypothermia.' "

The report:

Summary of Forthcoming Report on

“Enhanced” Interrogation Techniques: The Risk of Criminality

by Physicians for Human Rights and Human Rights First

July 2007

All U.S. personnel who engage in the CIA’s so-called “enhanced” interrogation techniques and similarly abusive techniques are at serious risk of violating U.S. law. Under U.S. law, as detailed below, the severity of physical pain or mental harm caused by an interrogation technique is key to determining whether the technique can be considered torture or cruel, inhuman or degrading treatment. An extensive body of medical literature, derived from the treatment and study of torture survivors worldwide, demonstrates that the “enhanced” techniques are likely to cause significant physical and mental harm to detainees. As a result, officials and interrogators who authorize and participate in interrogations using these techniques face a substantial risk of criminal prosecution under the provisions prohibiting “torture” and “cruel and inhuman treatment” in the U.S. War Crimes Act (WCA), as amended by the Military Commissions Act of 2006 (MCA),i and under the U.S. Torture Act of 2000.ii Many of these interrogation techniques may also be prohibited by the Detainee Treatment Act of 2005 (DTA).iii To protect U.S. officials and personnel from potential criminal liability and to ensure that all U.S. personnel adhere to U.S. law, these techniques should not be authorized.

The CIA Enhanced Interrogation Methods

While the details of, and regulations governing, the CIA’s “enhanced” interrogation program remain classified, credible reports have disclosed several of these techniques, including waterboarding (mock drowning), exposure to extreme cold (including induced hypothermia), stress positions, extreme sensory deprivation and overload, shaking, striking, prolonged sleep deprivation, and isolation, among others.iv Without identifying these and other specifically approved techniques, the President has publicly endorsed “alternative interrogation methods,” declaring that the MCA, which he signed into law in October 2006, allows the CIA “program” to continue.v Yet a closer examination of the MCA and other U.S. law, informed by medical and psychological knowledge, reveals that authorization of these enhanced interrogation techniques, whether practiced alone or in combination, may constitute torture and/or cruel and inhuman treatment and, consequently, place interrogators at serious legal risk of prosecution for war crimes or other violations.

A recently declassified report by the Pentagon’s Office of the Inspector General (OIG) has revealed that these techniques were based in large part on techniques of torture used by the U.S military in its Survival, Evasion, Resistance, and Escape (SERE) program intended to train personnel to resist such abuse.vi According to the OIG, these techniques were transformed, with the assistance of military psychologists, into “standard operating procedure” (SOP) for interrogations at the Guantánamo Bay detention facility. This Guantánamo SOP, the OIG reports, also was brought to Afghanistan and Iraq and, according to media reports, provided a basis for techniques used by CIA personnel, also with assistance from psychologists.vii The origin of these techniques is directly related to the focus of this report. They were designed to inflict physical and psychological harm for the purpose of breaking down interrogation subjects. This report describes the nature and extent of that harm and the legal consequences.

Violations of the War Crimes Act, the Torture Act and the Detainee Treatment Act

The recent amendments to the War Crimes Act establish as war crimes “grave breaches” of Common Article 3 of the Geneva Conventions,viii including “torture” and “cruel and inhuman treatment.”ix “Torture” is characterized, in pertinent part, as “an act specifically intended to inflict severe physical or mental pain or suffering.”x The separate war crime of “cruel and inhuman treatment,” is defined “an act intended to inflict severe or serious physical or mental pain or suffering.”xi

For the crime of torture under the WCA xii and the Torture Act,xiii severe mental pain or suffering is defined as “the prolonged mental harm caused by or resulting from” several specified actions, including “the intentional infliction or threatened infliction of severe physical pain or suffering” and “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.”xiv

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