Use of Torture as an Interrogation Tool

1. Use of Torture as an Interrogation Tool Case Study: 1.2.6

2. Rumsfeld v. Forum for Academic and Institutional Rights • SCT: “The Solomon amendment neither limits what law schools may say nor requires them to say anything.” • "Law schools remain free under the statute to express whatever views they may have on the military's Congressionally mandated employment policy, all the while retaining eligibility for federal funds." (Roberts wrote majority opinion)

3. Discussion Questions • 1) How do you identify a homosexual person under the policy? To what extent should the Military Board rely upon a person's characterization of themselves vs. labels attached to a person as a "homosexual" in deciding on the application of the regulation ban. If someone denies or fails to acknowledge his or her homosexuality, but someone else "outs" him or her, would that be sufficient to establish that they are a homosexual? • 2) Should this issue be resolved by Executive Order, congressional legislation, or by Judicial review. What are the policy and legal arguments to support the claim that the regulation is required to maintain discipline, good order and morale? • 3) What effect should congressional or state action failing to recognize the rights of gay persons to marry or be entitled to benefits have on military policy regarding gays in the military.

4. Amelioration Efforts • What amelioration efforts should be instituted by law schools to reduce the discriminatory aspects of military recruiting?

5. Legal Remedies Judicial Review of decisions; Congressional action to restrict; Impeachment; Elect someone else; Change in party representation; Criminal actions where violation of law; Censure; Sanctions Practical Effect Remedial vs. preventive; Burden on victims or special interests to challenge; Public opinion makes it clear lack of tolerance; and Protracted legal process for legal remedies gives Gov. time to achieve goal; i.e., detention, intelligence, & war. Remedies for Abuse of Executive Authority

6. Standards for Ethical Conduct • What requirements of a branch system of checks & balances must be upheld?

7. Standards for Ethical Conduct • What requirements of a branch system of checks & balances must be upheld? • Preserve an independent judicial branch. • Preserve two-party political system in government. • Ensure a person’s vote is counted.

8. Case Study Analysis Approach in evaluating a case study or problem: • What is the problem or need and why is it important? • Can the problem or need be addressed under existing statutory authority? • Are the interests of the parties mutually exclusive? • If not, what are the common interests that can lead to a process for resolving other issues.

9. Abuse of Executive Authority?

10. Reasons to Use Torture • Extract intelligence • Send a message to deter future behavior • Break spirit of detainee • Prevent “ticking bomb” from going off.

11. Facts-Mowhoush Maj. Gen Mowhoush of Iraq Rep. Guard went to seek son’s release; was detained, tortured in front of prisoners to get info re insurgency. -Stress Positions; Beat with fists, clubs, rubber hoses. -Wrapped in a sleeping bag, wrapped in wire, and sat on until he died from asphyxia. -Government initially lied and said he had died of natural causes.

12. Facts-Mowhoush Commander was aware of technique; thought it was approved, and acquiesced to its use. Chief Warrant Officer Welshofer convicted and tried for murder; convicted of involuntary manslaughter and dereliction of duty. Forfeited $6,000 salary; restricted to barracks for 60 days. No jail time.

13. Abu Ghraib Prison • Detainee’ hunger strike to protest torture and treatment met with force feeding. • 76 prisoners began fast131844 prisoner fed thru tubes; restrained to prevent vomiting & put in solitary confinement. • 56% detainees determined not to have committed any hostile acts (2/9)

14. Lack of Interrogation Training • Infantry officer Ian Fishback spent 17 months to clarify rules re treatment of prisoners. Did not get satisfactory answer. • Wrote to Sen. John McCain seeking clear standards McCain Amendment.

15. Torture Convention Definition • “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes of obtaining from him or a third person information or a confession… when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“Torture Convention”)

16. Self-executing --In effect at the time of execution between countries without legislation Non Self-executing --Requires congressional legislation to implement e.g. Geneva Convention; Torture Convention via 18 USC 2340A. Debate re Treaties

17. International Treaties • Geneva Convention (1949): Treatment of POW: to be free from coercion; visited by Red Cross, to have status reviewed. • Bush claims detainees are not POW so not required to abide by convention. • Different classes of persons: • Combatants (active participant in hostilities)-can kill on battlefield wherever they are found. Subject to POW protections? • Civilians (Civilian’s convention)-Article 31 protects vs coercion. • Unlawful combatants- Subject to POW protections; respect person, honour, religious practices.

18. U.S. Torture Statute (18 USC 2340A) • If commit torture outside of US shall be fined or imprisoned for not more than 20 years or both. And if death results to any person from conduct prohibited…, shall be punishable by death or imprisoned for any term of years or life.”

19. Torture Actors • Most actors are enlisted personnel acting under color of authority (orders) • Enlisted persons swear defend the Constitution; AND to obey the orders of the President of the United States and the orders of superior officers. • Officers make no such promise; only defend the Constitution. • Few superior officers are prosecuted, even though they may be aware of activity.

20. Reported Interrogation Techniques Torture • Beatings with cement blocks; • Burials of prisoners alive; • Electrical shocks to a man's testicles and legs; • Pole up a woman’s vagina; • Pull off fingernails; • Hung upside down in water; • Chained in fetal position for 18-24 hours

21. Effect of Disregarding Ban • Unlawful, immoral, & unreliable • Leading to torture used on U.S. POW & generations who hate, angry, sworn to retaliate vs. perpetrator. • “Open season” on US • Unreliable information-persons says anything to get the pain to stop. • No empirical evidence that it works

22. Lessons Learned • Not yield reliable information; • Corrupting effect on perpetrator; • Not be used only against guilty; • Once used, it is broadened; • Psychological torture  long term damage; • Stress and duress can be forms of torture; & • Can’t torture and retain moral high ground.

23. Assignment ASSIGNMENT: Draft a policy for the Joint Chiefs of Staff from the President that includes the following: • 1) A statement of when torture can be used by defining the exigent circumstances, if any, and may include an absolute ban, a qualified ban with any narrowly tailored exceptions or conditions, or an unqualified ban. Identify three factors or reasons to justify your response. • 2) What penalty should be exacted against U.S. military persons, who under Executive Order or through field manuals are ordered to take any action in violation of this policy. The effectiveness of the penalty will be predicated in direct proportion to the level of enforcement imposed. If the penalty and remedy is strong enough, then persons will be effectively deterred from violating the policy.

24. What is the Problem? • Importance?

25. What is the Problem? • Executive claims independent authority to authorize use of torture as Commander in chief in violation of McCain Amendment, which bans the use of torture as an investigation tool. • Importance: Increases likelihood that US POWs could be subjected to similar treatment. Human rights violations. Alienation from rest of world. Threaten leadership by example. • Consequence: Military personnel lack clear direction on what are permissible interrogation techniques.

26. Questions • Can the problem or need be addressed under existing statutory authority? • Are the interests of the parties mutually exclusive? • If not, what are the common interests that can lead to a process for resolving other issues.

27. Question 1: • To what standard should military personnel be held in conducting interrogations? • Absolute ban: Never use • Qualified ban: Under certain exceptions • Unqualified ban: Use at President’s discretion. • Direct policy toward personnel who must interpret law.

28. Mc Cain Amendment Army Field Manual Source of uniform standards for the interrogation of prisoners. Intelligence officer accused of violating interrogation rules may use as a defense that a reasonable person could have concluded they were following a lawful order.

29. McCain Amendment • SEC. 1074. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE. • (a) IN GENERAL- No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation. • (b) APPLICABILITY-Subsection (a) shall not apply to with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States. • (c) CONSTRUCTION-Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States. • 151 Cong. Rec. S12375, S12380 (daily ed. Nov. 4, 2005)

30. Bottom Line • No person in US custody shall be treated except per Field Manual. • N/A to persons in custody under US criminal or immigration laws. • Not affect constitutional rights of persons in US custody.

31. McCain Amendment SEC. 1075. PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT. • (a) In General- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. • (b) Construction-Nothing in this section shall be construed to impose anygeographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section. • (c) Limitation on Supersedure-The provisions of this section shall not be superseded, except by a provision of law enactedafter the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section. • (d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined-In this section, the term "cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

32. Bottom Line • No one in US custody anywhere shall be subject to cruel and inhuman punishment, regardless of nationality. • Ban cannot be repealed, except by a later act of Congress. (Not by E.O.) • Punishment prohibited by the Fifth (speedy trial, vs. self-incrimination); Eighth (cruel & inhuman punishment), and Fourteenth Amendments (equal protection and due process) to the Constitution of the United States per Torture Convention

33. Bush’s Reservation • Reservation in the Signing Statement for the law: “consistent with the constitutional authority of the President."

34. Facts: Field Manual • Torture memo-Justice Dept legal memo said Executive was authorized to order use of torture. • CIA retain proxies to conduct interrogation. • CIA trains soldiers on torture techniques. • Addendum to Manual re techniques is classified.

35. Question 2 • What are the long term effects on U.S. Soldiers after they return home, and is it adverse enough to impact on current policies? • Counseling; transition issues; • Carryover into law enforcement.

36. Position Focus on position and win-lose at all costs. Often Inflexible: defend or attack it. Tradeoff between Relationship and substance  people conflict. Look back for the cause. Principled Focus on issues and merits, win-win and fair to all sides. Be flexible and open-minded. Process guides substance. Separate perceptions & emotions. Learn to listen, not react. Look forward for the purpose. Getting to Yes

37. Strategy in Principled Negotiations • Look for mutual gains which always exist and create opportunities for compromise. • If there is a stalemate, move from substance to procedure which is from a stronger to a weaker more manageable scenario.

38. From Substance to Process

39. Strategy • Use Objective Criteria- Base it on something that is reasonable • Frame the issue as a joint search for criteria—Ask for the theory behind the position • Reason which standards are to be applied –Agree on the principles to be used • Don’t yield to pressure, only principle

40. Small Group Discussion • Individually Complete CPS worksheet w/ footnotes (readings not PPT) • Answer 3 questions in group. • Brainstorm on Solutions • Presenters answer questions, propose and defend reform.