Approval of Mistreatment and Torture
The OLC — in a now-infamous memo prepared by Assistant Attorney General Jay S. By bee (now a federal appeals court judge) — replied on August 1, 2002 that torturing al-Qaeda detainees in captivity abroad “may be justified,” and that international laws gainst torture “may be unconstitutional if applied to interrogations” conducted in the war on terrorism. The memo added that the doctrines of “necessity and self-defense could provide justifications that would eliminate any criminal liability” on the part of officials who tortured al-Qaeda detainees. The memo also took an extremely narrow view of which acts might constitute torture. It referred to seven practices that U.S. courts have ruled to constitute torture severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person. It then advised that “interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law.” The memo asserted, that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The memo also suggested that “mental torture” only included acts that resulted in “significant psychological harm of significant duration, e.g., lasting for months or even years.”12
A few months later, in October 2002, the Guantánamo authorities sent a letter to Secretary Rumsfeld requesting permission to employ harsher interrogation techniques on prisoners. The requested techniques were reviewed by Department of Defense General Counsel William J. Haynes, who recommended that Secretary Rumsfeld approve 16 of the requested techniques for use in interrogations at Guantánamo. On December 2, 2002, Secretary Rumsfeld approved this recommended list, which included such techniques as hooding, stress positions, isolation, stripping, deprivation of light, removal of religious items, forced grooming, and use of dogs.13
As described below, these techniques, which violate not only the Geneva Conventions but the laws against torture and other prohibited ill-treatment, later “migrated” to Iraq and
Afghanistan where they were regularly applied to detainees.
On January 15, 2003, following criticism from the Navy general counsel, Secretary Rumsfeld rescinded the December 2 guidelines, stating that harsher techniques in those guidelines could be used only with his approval.14 Secretary Rumsfeld then ordered the establishment of a working group to examine which interrogation techniques should be allowed for prisoners in Guantánamo.15
The portions of the working group’s report that have been made available make
clear that in reviewing interrogation techniques, they relied heavily on the logic of the president’s February 7, 2002 memo regarding the applicability of the Geneva Conventions to al-Qaeda and Taliban prisoners, as well as the August 1, 2002 OLC memo on evading sanction for interrogation techniques that might be deemed illegal under treaty obligations and U.S. law.16
The results of this study led to Secretary Rumsfeld’s promulgation, on April 16 2003, of a memo outlining techniques that could only be applied to interrogations of “unlawful combatants” held at Guantánamo.17
In addition, the Justice Department and the White House apparently gave the CIA the authority to use additional techniques, such as “waterboarding,” in which the detainee is strapped down, forcibly pushed under water, and made to believe he might drown.18 The president also apparently authorized the CIA to “disappear” certain prisoners, placing leading al-Qaeda suspects in long-term secret incommunicado detention in “undisclosed locations.”19
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12 Jay S. Bybee to Alberto R. Gonzales, Counsel to the President, memorandum, “Standards for Conduct of Interrogation
under 18 U.S.C. Sections 2340-2340A,” August 1, 2002 [online],
http://news.findlaw.com/wp/docs/doj/bybee80102mem.pdf (This memorandum has since been repudiated by the
administration).
13 William J. Haynes II to the Secretary of Defense, memorandum, “Counter-Resistance Techniques,” November 27,
2002.
14 Schlesinger report, p. 7.
15 Ibid., p. 8.
16 “Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical,
Policy, and Operational Considerations,” U.S. Department of Defense, Center for Defense Information: International
Security Law Project, March 6, 2003 [online], http://www.cdi.org/news/law/pentagon-torture-memo.pdf.
17 Schlesinger report, p. 8. (The memo no longer authorized stress positions, stripping and the use of dogs. It did allow
isolation, removing privileges from detainees, and “attacking or insulting the ego of a detainee.”)
18 Dana Priest, “CIA Puts Harsh Tactics on Hold,” The Washington Post, June 27, 2004; James Risen, David Johnston
and Neil A. Lewis, “Harsh CIA Methods Cited in Top Qaeda Interrogations,” The New York Times, May 13, 2004.
19 John Barry, Michael Hirsh and Michael Isikoff, “The Roots of Torture,” Newsweek, May 24, 2004 [online],
http://msnbc.msn.com/id/4989422/site/newsweek/ (“According to knowledgeable sources, the president’s directive
authorized the CIA to set up a series of secret detention facilities outside the United States, and to question those held in
them with unprecedented harshness.”)