Enhanced interrogation techniques or alternative set of procedures are terms adopted by the George W. Bush administration in the United States to describe certain severe interrogation methods, with some methods described as torture.[1] These techniques were authorized by the Bush administration and used by the Central Intelligence Agency (CIA) and the Department of Defense (DoD) to extract information from individuals captured in the War on Terror after the September 11 attacks in 2001.
The Obama administration in 2009 stated it would abide by the Geneva Convention, called some of the techniques torture, and repudiated their use.[2]
Atlantic Monthly writer Andrew Sullivan asserts the first use of a term comparable to "enhanced interrogation" was a 1937 memo by Gestapo Chief Heinrich Muller coining the phrase "Verschärfte Vernehmung," German for "sharpened," "intensified" or "enhanced interrogation" to describe subjection to extreme cold, sleep deprivation, and deliberate exhaustion among other techniques.[3] Sullivan reports that in 1948 Norway prosecuted German officials for what trial documents termed "Verschärfte Vernehmung" including subjection to cold water, and repeated beatings.[3]
According to historian Robert Gellately, "Gestapo case files were systematically burned all across Germany in an effort to destroy evidence that might be used in the anticipated postwar trials." For this and for reasons of omission, no documents regarding "intensified interrogation" were ever found after the war. However, the term managed to resurface during the Nuremberg Trials and was often referred to as the third degree.[4]
In early 2002, immediately following Abu Zubaydah’s capture, top US Government officials including Dick Cheney, Colin Powell, George Tenet, Condoleezza Rice, Donald Rumsfeld, and John Ashcroft discussed at length whether or not the CIA could legally use harsh techniques against Abu Zubaydah.[5][6] Condoleezza Rice specifically mentioned the SERE program during the meeting stating “I recall being told that U.S. military personnel were subjected to training to certain physical and psychological interrogation techniques…”[7]
ABC News reported on April 9, 2008 that "the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency." The article states that those involved included:
Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.[8]
In addition, in 2002 and 2003, several Democratic congressional leaders were briefed on the proposed “enhanced interrogation techniques.”[9] These congressional leaders included Nancy Pelosi, the future Speaker of the House, and Representative Jane Harman.[9] Congressional officials have stated that the attitude in the briefings was “quiet acquiescence, if not downright support.”[9] Senator Bob Graham, who CIA records claim was present at the briefings, has stated that he was not briefed on waterboarding in 2002 and that CIA attendance records clash with his personal journal.[10] Harman was the only congressional leader to object to the tactics being proposed.[11] It is of note that in a 2007 report by investigator Dick Marty on secret CIA prisons, the phrase “enhanced interrogations” was stated to be a euphemism for torture.[12] The documents show that top U.S. Officials were intimately involved in the discussion and approval of the harsher interrogation techniques used on Abu Zubaydah.[7]
Condoleezza Rice ultimately told the CIA the harsher interrogation tactics were acceptable,[13][14] In 2009 Rice stated, "We never tortured anyone."[15] And Dick Cheney stated "I signed off on it; so did others."[14][16] In 2010, Cheney remained unrepentant, saying, "I was and remain a strong proponent of our enhanced interrogation program."[17] Pressed on his personal view of waterboarding, Karl Rove told the BBC in 2010: “I’m proud that we kept the world safer than it was, by the use of these techniques. They’re appropriate, they’re in conformity with our international requirements and with US law.”[18] During the discussions John Ashcroft is reported as saying “Why are we talking about this in the White House? History will not judge this kindly.”[6]
At least one adviser to Condoleezza Rice, Philip Zelikow, opposed the new, harsher interrogation techniques.[19] Upon reading the August 1, 2002 memo which justified the torture, Zelikow authored his own memo contesting the Justice Department's conclusions, believing them wrong both legally and as a matter of policy.[19] The Bush Administration attempted to collect all of the copies of Zelikow's memo and destroy them.[19][20] Jane Mayer, author of the Dark Side,[21] quotes Zelikow as predicting that "America's descent into torture will in time be viewed like the Japanese internments," in that "(f)ear and anxiety were exploited by zealots and fools."[22]
The CIA interrogation strategies were based on work done by James Elmer Mitchell and Bruce Jessen in the Air Force's Survival Evasion Resistance Escape (SERE) program.[23][24][25][26][27][28] The CIA contracted with the two psychologists to develop alternative, harsh interrogation techniques.[23][24][25][26][27] However, neither of the two psychologists had any experience in conducting interrogations.[25][26][27][29] Air Force Reserve Colonel Steve Kleinman stated that the CIA "chose two clinical psychologists who had no intelligence background whatsoever, who had never conducted an interrogation... to do something that had never been proven in the real world."[26][27][29] Associates of Mitchell and Jessen were skeptical of their methods and believed they did not possess any data about the impact of SERE training on the human psyche.[27] The CIA came to learn that Mitchell and Jessen's expertise in waterboarding was probably "misrepresented" and thus, there was no reason to believe it was medically safe or effective.[25] Despite these shortcomings of experience and know-how, the two psychologists boasted of being paid $1000 a day plus expenses, tax-free by the CIA for their work.[25][26][27]
The SERE program, which Mitchell and Jessen would reverse engineer, was used to train pilots and other soldiers on how to resist torture techniques originally developed by the Chinese and North Koreans for extracting false confessions from captured Americans.[24][27] The program subjected trainees to torture techniques such as “waterboarding . . . sleep deprivation, isolation, exposure to extreme temperatures, enclosure in tiny spaces, bombardment with agonizing sounds at extremely damaging decibel levels, and religious and sexual humiliation.”[30] Under CIA supervision, Miller and Jessen adapted SERE into an offensive program designed to train CIA agents on how to use the harsh interrogation techniques to gather information from terrorist detainees.[23][24][27] In fact, all of the tactics listed above would later be reported in the International Committee of the Red Cross Report on Fourteen High Value Detainees in CIA Custody as having been used on Abu Zubaydah.[31][32]
Stephen Soldz, Steven Reisner and Brad Olson wrote an article describing how the techniques used mimic what was taught in the SERE-program: "the military's Survival, Evasion, Resistance, and Escape program that trains US Special Operations Forces, aviators and others at high risk of capture on the battlefield to evade capture and to resist 'breaking' under torture, particularly through giving false confessions or collaborating with their captors".[33]
The psychologists relied heavily on experiments done by American psychologist Martin Seligman in the 1970s on learned helplessness.[34] In these experiments caged dogs were exposed to severe electric shocks in a random way in order to completely break their will to resist.[34] Mitchell and Jessen applied this idea to Abu Zubaydah during his interrogation.[24][34] Many of the interrogation techniques used in the SERE program, including waterboarding, cold cell, long-time standing, and sleep deprivation were previously considered illegal under U.S. and international law and treaties at the time of Abu Zubaydah’s capture.[35][36] In fact, the United States had prosecuted Japanese military officials after World War II and American soldiers after the Vietnam War for waterboarding and as recently as 1983.[36] Since 1930, the United States had defined sleep deprivation as an illegal form of torture.[24] Many other techniques developed by the CIA constitute inhuman and degrading treatment and torture under the United Nations Convention against Torture and Article 3 of the European Convention on Human Rights.[35]
According to Human Rights First:
Internal FBI memos and press reports have pointed to SERE training as the basis for some of the harshest techniques authorised for use on detainees by the Pentagon in 2002 and 2003.[37]
And Salon stated:
A March 22, 2005, sworn statement by the former chief of the Interrogation Control Element at Guantánamo said instructors from SERE also taught their methods to interrogators of the prisoners in Cuba.[38]
While Jane Mayer reported for The New Yorker:
According to the sere affiliate and two other sources familiar with the program, after September 11th several psychologists versed in SERE techniques began advising interrogators at Guantánamo Bay and elsewhere. Some of these psychologists essentially “tried to reverse-engineer” the SERE program, as the affiliate put it. “They took good knowledge and used it in a bad way,” another of the sources said. Interrogators and BSCT members at Guantánamo adopted coercive techniques similar to those employed in the SERE program.[39]
and continues to report:
many of the interrogation methods used in SERE training seem to have been applied at Guantánamo.."[33][40][41][42]
A bipartisan report in released 2008 stated that:
a February 2002 memorandum signed by President George W. Bush, stating that the Third Geneva Convention guaranteeing humane treatment to prisoners of war did not apply to al-Qaeda or Taliban detainees, and a December 2002 memo signed by former Defense Secretary Donald Rumsfeld, approving the use of "aggressive techniques" against detainees held at Guantanamo Bay, as key factors that lead to the extensive abuses.[43]
A Congressional bipartisan report in December 2008[44] established that:
harsh interrogation techniques used by the CIA and the U.S. military were directly adapted from the training techniques used to prepare special forces personnel to resist interrogation by enemies that torture and abuse prisoners. The techniques included forced nudity, painful stress positions, sleep deprivation, and until 2003, waterboarding, a form of simulated drowning.
According to ABC News,[45] former and current CIA officials have come forward to reveal details of interrogation techniques authorized in the CIA. These include:
In December 2007 CIA director Michael Hayden stated that "of about 100 prisoners held to date in the CIA program, the enhanced techniques were used on about 30, and waterboarding used on just three.".[48][49]
The report, "Experiments in Torture: Human Subject Research and Evidence of Experimentation in the 'Enhanced' Interrogation Program", published by the advocacy group Physicians for Human Rights, described personnel in the CIA's Office of Medical Services (OMS) performing research on the prisoners as the above techniques were used both serially and in combination.[50] This report was based on previously classified documents made available by the Obama administration in 2010.
According to an item on ABC news in 2007 the CIA removed waterboarding from its list of enhanced interrogation techniques in 2006. ABC stated further that the last use of waterboarding was in 2003.[51]
The following techniques were being used by the U.S. military:[52][33][53]
In November 2006, former US army Brigadier General Janis Karpinski, in charge of Abu Ghraib prison until early 2004, told Spain's El Pais newspaper she had seen a letter signed by United States Secretary of Defense Donald Rumsfeld that allowed civilian contractors to use techniques such as sleep deprivation during interrogation.'"The methods consisted of making prisoners stand for long periods, sleep deprivation ... playing music at full volume, having to sit in uncomfortably ... Rumsfeld authorised these specific techniques." She said that this was contrary to the Geneva Conventions and quoted the Geneva Convention as saying, "Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." According to Karpinski, the handwritten signature was above his printed name and in the same handwriting in the margin was written, "Make sure this is accomplished."[54]
On May 1, 2005, The New York Times reported on an ongoing high-level military investigation into accusations of detainee abuse at Guantánamo, conducted by Lieutenant General Randall M. Schmidt of the Air Force, and dealing with: "accounts by agents for the Federal Bureau of Investigation who complained after witnessing detainees subjected to several forms of harsh treatment. The FBI agents wrote in memorandums that were never meant to be disclosed publicly that they had seen female interrogators forcibly squeeze male prisoners' genitals, and that they had witnessed other detainees stripped and shackled low to the floor for many hours."[55]
On July 12, 2005, members of a military panel told the committee that they proposed disciplining prison commander Major General Geoffrey Miller over the interrogation of Mohammed al Qahtani, who was forced to wear a bra, dance with another man, and threatened with dogs. The recommendation was overruled by General Bantz J. Craddock, commander of US Southern Command, who referred the matter to the army's inspector general.[56]
In an interview with AP on February 14, 2008 Paul Rester, chief military interrogator at Guantanamo Bay and director of the Joint Intelligence Group, said most of the information gathered from detainees came from non-coercive questioning and "rapport building," not harsh interrogation methods.[40]
Senior law enforcement agents with the Criminal Investigation Task Force told MSNBC.com in 2006 that they began to complain inside theU.S. Department of Defense in 2002 that the interrogation tactics used in Guantanamo Bay by a separate team of military intelligence investigators were unproductive, not likely to produce reliable information, and probably illegal. Unable to get satisfaction from the army commanders running the detainee camp, they took their concerns to David Brant, director of the Naval Criminal Investigative Service (NCIS), who alerted Navy General Counsel Alberto J. Mora.[57]
General Counsel Mora and Navy Judge Advocate General Michael Lohr believed the detainee treatment to be unlawful, and campaigned among other top lawyers and officials in the Defense Department to investigate, and to provide clear standards prohibiting coercive interrogation tactics.[58] In response, on January 15, 2003, Rumsfeld suspended the approved interrogation tactics at Guantánamo Bay until a new set of guidelines could be produced by a working group headed by General Counsel of the Air Force Mary Walker. The working group based its new guidelines on a legal memo from the United States Department of Justice Office of Legal Counsel written by John Yoo and signed by Jay S. Bybee, which would later become widely known as the "Torture Memo." General Counsel Mora led a faction of the Working Group in arguing against these standards, and argued the issues with Yoo in person. The working group's final report was signed and delivered to Guantánamo without the knowledge of Mora and the others who had opposed its content. Nonetheless, Mora has maintained that detainee treatment has been consistent with the law since the January 15, 2003 suspension of previously approved interrogation tactics.[59]
President Bush stated "The United States of America does not torture. And that's important for people around the world to understand."[60] The administration adopted the Detainee Treatment Act of 2005 to address the multitude of incidents of detainee abuse. However, in his signing statement, Bush made clear that he reserved the right to waive this bill if he thought that was needed.[61]
The Washington Post reported in January 2009 that Susan J. Crawford, convening authority of military commissions, stated about the interrogation of Mohammed al-Qahtani, one of the so-called "20th hijacker" of the September 11 attacks:
"The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent.... You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge", i.e., to call it torture.[62]
The reason Crawford decided not to prosecute al-Qahtani was because his treatment fell within the definition of torture.[62]
Former President Bush in his published memoirs[63] defends the utility of "enhanced interrogation" techniques and continues to assert that they are not torture.[64]
However, his successor President Obama, Attorney General Holder, and Guantanamo military prosecutor Crawford called the techniques torture.[2] The British government has determined the techniques would be classified as torture, and dismissed President Bush's claim to the contrary.[64][65] A report by Human Rights First (HRF) and Physicians for Human Rights (PFH) stated that these techniques constitute torture.[66] They also cite the U.S. Office of the Inspector General report which concluded that "SERE-type interrogation techniques constitute 'physical or mental torture and coercion under the Geneva conventions.'[33]" A United Nations report denounced the US abuse of prisoners as tantamount to torture.[67] The UN report called for cessation of the US-termed "enhanced interrogation" techniques, as the UN sees these methods as a form of torture. The UN report also admonishes against secret prisons, the use of which, is considered to amount to torture as well and should be discontinued.[68]
Some in the US press have been hesitant to call enhanced interrogation torture because as Paul Kane of the Washington Post explained, torture is a crime and nobody who engaged in "enhanced interrogation" has been charged or convicted.[69] The New York Times terms the techniques "harsh" and "brutal" while avoiding the word "torture" in most but not all[70] news articles,[71] though it routinely calls "enhanced interrogation" torture in editorials.[72] Slate magazine terms enhanced interrogation the "U.S. torture program."[73]
Following NPR's controversial ban on using the word torture[74] and Ombudsman Alica Shepard's defense of the policy that "calling waterboarding torture is tantamount to taking sides",[75] Berkeley Professor of Linguistics Geoffrey Nunberg pointed out that virtually all media around the world, other than what he called the "spineless U.S. media", call these techniques torture.[76][77] In an article on the euphemisms invented by the media that also criticized NPR, Glenn Greenwald discussed the enabling "corruption of American journalism":
This active media complicity in concealing that our Government created a systematic torture regime, by refusing ever to say so, is one of the principal reasons it was allowed to happen for so long. The steadfast, ongoing refusal of our leading media institutions to refer to what the Bush administration did as "torture" -- even in the face of more than 100 detainee deaths; the use of that term by a leading Bush official to describe what was done at Guantanamo; and the fact that media outlets frequently use the word "torture" to describe the exact same methods when used by other countries --reveals much about how the modern journalist thinks.[78]
Also, according to the New York Times:
Experts advising the Bush administration on new interrogation rules warn that harsh techniques used since 2001 terrorist attacks are outmoded, amateurish and unreliable.[79]
The Washington Post described the report by the Intelligence Science Board:
There is almost no scientific evidence to back up the U.S. intelligence community's use of controversial interrogation techniques in the fight against terrorism, and experts believe some painful and coercive approaches could hinder the ability to get good information, according to a new report from an intelligence advisory group.[42]
The so-called ticking time bomb scenario is frequently used to try to justify extreme interrogation. Michael Chertoff, the Homeland Security Chief under Bush, declared that the TV series 24 "reflects real life" - despite the series depicting its main character as encountering different "ticking time bombs" 12 times a day on average.[80] Dick Cheney stated: "I know specifically of reports... that lay out what we learnt through the interrogation process and what the consequences were for the country", however the only examples publicly released that attempt to support this claim are:
An academic analysis by Professor Shane O'Mara of the Trinity College Institute of Neuroscience concluded that "Prolonged stress from the CIA's harsh interrogations could have impaired the memories of terrorist suspects, diminishing their ability to recall and provide the detailed information the spy agency sought".[83][84]
Former Washington Post writer Peter Carlson notes that when it became known U.S. troops were waterboarding Filipino guerrilla fighters in 1898,[85] author Mark Twain remarked,
"To make him confess what? Truth? Or lies? How can one know which it is they are telling? For under unendurable pain a man confesses anything that is required of him, true or false, and his evidence is worthless."[86]
Former CIA operative John Kiriakou in 2007 told CNN's "American Morning" that the torture of Al Qaeda's Abu Zubayda indirectly lead to the arrest of Khalid Sheikh Mohammed:[87]
Former CIA Director Michael Hayden said:
After the killing of Osama bin Laden, a Washington Post report, quoting U.S. officials including former attorney general Michael Mukasey, asserted that the interrogation of Khalid Sheikh Mohammed and Abu Faraj al-Libbi provided a courier's pseudonym "al-Kuwaiti" which ultimately allowed them to locate Bin Laden.[90] Also Fox News reports that the enhanced interrogation techniques provided key details on Bin Laden's location, referring to Dick Cheney saying that he "assumes" that enhanced interrogation techniques led to bin Laden's capture.[91] However, Khalid Sheikh Mohammed was not the first one providing this information: U.S. officials said that already shortly after the Sept. 11, 2001, terrorist attacks, detainees in CIA secret prisons told interrogators about the courier's pseudonym "al-Kuwaiti". Later, after Khalid Sheikh Mohammed was captured, he just "confirmed" the courier's pseudonym.[92] After Abu Faraj al-Libbi was captured, he provided bogus information, denying that he knew al-Kuwaiti and making up another name instead.[92]
Military interrogators with knowledge of the sources of the information deny that "enhanced interrogation" eventually led to finding and killing Osama Bin Laden[93] A group of interrogators contradicting former Bush administration Defense Secretary Rumsfeld's claim that "enhanced interrogation" produced the leads that ultimately led to Osama Bin Laden, asserted that the key piece of information, a courier's nickname, was not divulged "during torture, but rather several months later, when [detainees] were questioned by interrogators who did not use abusive techniques.”[94]
Columnist Marc Thiessen calls this view "ignorance of how CIA interrogations worked." He asserts that during "enhanced interrogation" the interrogators only asked questions to which they already knew the answers in order "to create a state of cooperation, not to get specific truthful answers to a specific question." They would not have asked for unknown information until after the subject was willing to talk, at which point the techniques would no longer be used.[95]
Senator John McCain, citing CIA Director Leon Panetta, said that the assertion that waterboarding produced information that found Osama Bin Laden is false; all the useful leads were "obtained through standard, noncoercive means."[96] The CIA later provided the Washington Post a letter from CIA Director Penetta to Senator McCain that confirms that enhanced interrogation techniques did not help and may have hindered the search for Bin Laden by producing false information during interrogations. In the letter CIA Director Panetta wrote Senator McCain that
In December 2007 it became known that the CIA had destroyed videotapes depicting prisoners being interrogated. Subsequent disclosures in 2010 revealed that Jose Rodriguez Jr., head of the directorate of operations at the CIA from 2004 to 2007, ordered the tapes destroyed because what they showed was so horrific they would be "devastating to the CIA," and that "the heat from destroying is nothing compared to what it would be if the tapes ever got into public domain."[98] The New York Times reported that according to "some insiders" an inquiry into the C.I.A.’s secret detention program which analysed these techniques "might end with criminal charges for abusive interrogations."[99] In an Op-ed for The New York Times Thomas H. Kean and Lee H. Hamilton, chair and vice chair of the 9/11 Commission, stated:
As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.[100]
Responding to the so-called "torture memoranda" Scott Horton pointed out
the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous “Night and Fog Decree.”[101]
Jordan Paust concurred by responding to Mukasey's refusal to investigate and/or prosecute anyone that relied on these legal opinions
it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense![102]
On March 15, 2009, Mark Danner provided a report in the New York Review of Books (with an abridged version in the New York Times) describing and commenting on the contents of a report by the International Committee of the Red Cross (ICRC), Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody (43 pp., February 2007). Report... is a record of interviews with black site detainees, conducted between October 6 and 11 and December 4 and 14, 2006, after their transfer to Guantánamo.[103] (According to Danner, the report was marked "confidential" and was not previously made public before being made available to him.)
Danner provides excerpts of interviews with detainees, including Abu Zubaydah, Walid bin Attash, and Khalid Shaikh Mohammed. According to Danner, the report contains sections on "methods of ill-treatment" including suffocation by water, prolonged stress standing, beatings by use of a collar, beating and kicking, confinement in a box, prolonged nudity, sleep deprivation and use of loud music, exposure to cold temperature/cold water, prolonged use of handcuffs and shackles, threats, forced shaving, and deprivation/restricted provision of solid food. Danner quotes the ICRC report as saying that, "in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment."[103]
A bipartisan Senate Armed Services Committee report, released in part in December 2008 and in full in April 2009, concluded that the legal authorization of "enhanced interrogation techniques" led directly to the abuse and killings of prisoners in US military facilities at Abu Ghraib, Bagram, and elsewhere.[104] Coercive methods originally derived from Chinese communists to extract false confessions migrated from Guantanamo Bay to Afghanistan, then to Iraq and Abu Ghraib.[105] The report concludes that some authorized techniques including "use of stress positions and sleep deprivation combined with other mistreatment" caused or were direct contributing factors in the cases of several prisoners who were "tortured to death."[106][107][108] The report also notes that authorizing abuse created the conditions for other, unauthorized abuse, by creating a legal and moral climate encouraging inhumane treatment.[108] The legal memos condoning "enhanced interrogation" had "redefined torture,"[104] "distorted the meaning and intent of anti-torture laws, [and] rationalized the abuse of detainees,"[108] conveying the message that "physical pressures and degradation were appropriate treatment."[107] What followed was an "erosion of standards dictating that detainees be treated humanely."[104] The report accused Defense Secretary Rumsfeld and his deputies of being, according to the Washington Post, directly responsible as the "authors and chief promoters of harsh interrogation policies that disgraced the nation and undermined U.S. security."[109]
On June 8, 2008, fifty-six House Democrats asked for an independent investigation, raising the possibility that authorising these techniques may constitute a crime by Bush administration officials. The congressmen involved in calling for such an investigation included John Conyers, Jan Schakowsky, and Jerrold Nadler.[110]
The letter was addressed to Attorney General Michael B. Mukasey observing that:
"... information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law."[110]
The letter continues to state:
"Because these apparent 'enhanced interrogation techniques' were used under cover of Justice Department legal opinions, the need for an outside special prosecutor is obvious."[110]
According to the Washington Post the request was denied because Attorney General Michael B. Mukasey felt that:
officials acted in "good faith" when they sought legal opinions, and that the lawyers who provided them used their best judgment.[111]
The article also reported that:
He warned that criminalizing the process could cause policymakers to second-guess themselves and "harm our national security well into the future."[111]
After Cheney acknowledged his involvement in authorising these tactics[112] Senator Carl Levin, chair of the Armed Services Committee, a New York Times editorial, Glenn Greenwald and Scott Horton stressed the importance of a criminal investigation:
A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse.[113]
Shortly before the end of Bush's second term newsmedia in other countries were opining that under the United Nations Convention Against Torture the US is obligated to hold those responsible to account under criminal law.[114]
The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment -Professor Manfred Nowak- on January 20, 2008 remarked on German television that, following the inauguration of Barack Obama as new President, George W. Bush has lost his head of state immunity and under international law the U.S. is now mandated to start criminal proceedings against all those involved in these violations of the UN Convention Against Torture.[115] Law professor Dietmar Herz explained Novak's comments by saying that under U.S. and international law former President Bush is criminally responsible for adopting torture as interrogation tool.[115]
On February 4, 2009 the High Court of England and Wales ruled that evidence of possible torture in the case of Binyam Mohamed, an Ethiopian-born British resident who is held in Guantanamo Bay, could not be disclosed:
as a result of a statement by David Miliband, the foreign secretary, that if the evidence was disclosed the US would stop sharing intelligence with Britain. That would directly threaten the UK's national security, Miliband had told the court.[116]
Responding to the ruling, David Davis, the Conservative MP and former shadow home secretary, commented:
The ruling implies that torture has taken place in the [Binyam] Mohamed case, that British agencies may have been complicit, and further, that the United States government has threatened our high court that if it releases this information the US government will withdraw its intelligence cooperation with the United Kingdom.[116]
The High Court judges also stated that a criminal investigation, by the UK's attorney general, into possible torture has begun.[117]
After the disclosure of the use of the techniques, debates arose over the legality of the techniques—whether or not they had violated U.S. or international law.
Following the September 11 attacks in 2001, several memoranda analyzing the legality of various interrogation methods[118] were written by John Yoo from the Office of Legal Counsel. The memos, known today as the torture memos,[101][119] advocate enhanced interrogation techniques, while pointing out that avoiding the Geneva Conventions would reduce the possibility of prosecution under the US War Crimes Act of 1996 for actions taken in the War on Terror.[120] In addition, a new US definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S.[121]
The Bush administration told the CIA in 2002 that its interrogators working abroad would not violate US prohibitions against torture unless they "have the specific intent to inflict severe pain or suffering", according to a previously secret US Justice Department memo released on July 24, 2008. The interrogator's "good faith" and "honest belief" that the interrogation will not cause such suffering protects the interrogator, the memo adds. "Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture", Jay Bybee, then the Assistant Attorney General, wrote in the memo dated August 1, 2002 addressed to the CIA acting General Counsel John A. Rizzo. The 18-page memo is heavily redacted, with 10 of its 18 pages completely blacked out and only a few paragraphs legible on the others.
Another memo released on the same day advises that "the waterboard," does "not violate the Torture Statute." It also cites a number of warnings against torture, including statements by President Bush and a then-new Supreme Court ruling "which raises possible concerns about future US judicial review of the [interrogation] Program."
A third memo instructs interrogators to keep records of sessions in which "enhanced interrogation techniques" are used. The memo is signed by then-CIA director George Tenet and dated January 28, 2003.
The memos were made public by the American Civil Liberties Union, which obtained the three CIA-related documents under Freedom of Information Act requests.[122]
The less redacted version of the August 1, 2002 memo signed by Assistant Attorney General Jay Bybee (regarding Abu Zubaydah) and four memos from 2005 signed by Principal Deputy Assistant Attorney General Steven Bradbury addressed to CIA and analysing the legality of various specific interrogation methods, including waterboarding, were released by Barack Obama administration on April 16, 2009[123]
Following the release of the CIA documents and now released from non disclosure agreements he had signed Philip Zelikow, a former State Department lawyer and adviser to then-Secretary of State Condoleezza Rice, stated that he had argued it was unlikely that "any federal court would agree (that the approval of harsh interrogation techniques) ... was a reasonable interpretation of the Constitution." He was told to destroy copies of his own memo and claimed that the Bush Administration had ordered that other dissenting legal advice be collected and destroyed.[124][125]
US Supreme Court Justice Antonin Scalia said on BBC Radio 4 that since these methods are not intended to punish they do not violate the Eighth Amendment to the United States Constitution, barring "cruel and unusual punishment", and as such may not be unconstitutional.[126]
The US Supreme Court ruled in Hamdan v. Rumsfeld that, contrary to what the Bush administration advocated, Common Article 3 of the Geneva Conventions applies to all detainees in the war on terrorism and as such the Military Tribunals used to try suspects were violating the law. The Court reaffirmed that those involved in mistreatment of detainees violate US and international law.[127]
On May 19, 2006, the UN Committee against Torture issued a report stating the U.S. should stop, what it concludes, is "ill-treatment" of detainees, since such treatment, according to the report, violates international law.[68]
A report by Human Rights First (HRF) and Physicians for Human Rights (PFH) stated that these techniques constitute torture.[66] Their press release said:
The report concludes that each of the ten tactics is likely to violate U.S. laws, including the War Crimes Act, the U.S. Torture Act, and the Detainee Treatment Act of 2005.[66]
On December 14, 2005, the Detainee Treatment Act was passed into law, specifically clarifying that interrogations techniques be limited to those explicitly authorized by the Army Field Manual.[128] On February 13, 2008 the US Senate, in a 51 to 45 vote, approved a bill limiting the number of techniques allowed to only "those interrogation techniques explicitly authorized by the 2006 Army Field Manual."[129] The Washington Post stated:
The measure would effectively ban the use of simulated drowning, temperature extremes and other harsh tactics that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks.[130]
President George W. Bush has said in a BBC interview he would veto such a bill[130][131] after previously signing an executive order that
allows "enhanced interrogation techniques" and may exempt the CIA from Common Article 3 of the Geneva Conventions.[129]
On March 8, 2008 President Bush vetoed this bill. "Because the danger remains, we need to ensure our intelligence officials have all the tools they need to stop the terrorists," Bush said in his weekly radio address . "The bill Congress sent me would take away one of the most valuable tools in the war on terror - the CIA program to detain and question key terrorist leaders and operatives." Bush said that the methods used by the military are designed for interrogating "lawful combatants captured on the battlefield", not the "hardened terrorists" normally questioned by the CIA. "If we were to shut down this program and restrict the CIA to methods in the Field Manual, we could lose vital information from senior al Qaida terrorists, and that could cost American lives," Bush said.
Massachusetts senator Edward Kennedy described Bush's veto as "one of the most shameful acts of his presidency". He said, "Unless Congress overrides the veto, it will go down in history as a flagrant insult to the rule of law and a serious stain on the good name of America in the eyes of the world."[132][133][134][135]
According to Jane Mayer, during the transition period for then President-elect Barack Obama, his legal, intelligence, and national-security advisers had met at the CIA’s headquarters in Langley to discuss "whether a ban on brutal interrogation practices would hurt their ability to gather intelligence," and among the consulted experts:
There was unanimity among Obama’s expert advisers... that to change the practices would not in any material way affect the collection of intelligence.[136]
On January 22, 2009 President Obama signed an executive order requiring the CIA to use only the 19 interrogation methods outlined in the United States Army Field Manual on interrogations "unless the Attorney General with appropriate consultation provides further guidance."[137]
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