800 word paper ( double spaced, APA-style bibliography) and a Final

SPRING 2021 - LAW 301

LESSON 6: APPLIED JURISPRUDENCE: TORTURE & THE WAR ON TERROR – PARTS 1 & 2

INTRODUCTION

• Immediately after the terrorist attacks on the New York World Trade Center and the Pentagon on September 11, 2001,

the US government was concerned that further attacks were already underway. Acting under the impression of an

imminent threat and critical time pressure, Congress gave President George W Bush largely free rein to protect the

United States from further attack.

 Both the authorization by Congress and the action by the executive on that basis outlived the immediate shock after

September 11th and still form the basis of the War on Terror today.

• The legal basis for the War on Terror is the Authorization for Use of Military Force (AUMF), which Congressed passed

on September 14, 2001 - just 3 days after the terrorist attacks of September 11th

 The AUMF authorized the president “to use all necessary and appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11th,

or harbored such organizations or persons.”

 The AUMF did not delineate any territorial specificity or geographical limits.

GATHERING ACTIONABLE INTELLIGENCE THROUGH INTERROGATION

• As is common in asymmetrical wars when states (countries) fight non-state groups, gathering actionable intelligence

through interrogation of captured enemies was of the utmost importance.

• During the War on Terror, two groups were tasked with gathering intelligence through the interrogation of suspected

terrorists: The Central Intelligence Agency (CIA) and The U.S. Military

Intelligence Gathering by the CIA: The Rendition, Detention & Interrogation (RDI) Program

• President Bush made covert operations a central part of the War on Terror

• On September 17, 2001 - six days after the terrorist attacks of September 11th - President Bush signed a classified,

covert action Memorandum of Notification (MON), which gave the CIA far-reaching powers to seize and detain

suspected terrorists.

 In contrast to previous covert programs, the president did not authorize each operation individually.

▪ Instead, he delegated the approval of specific operations, including targeted killings, to the head of the CIA

Counterterrorism Center.

 Details were kept secret from the public.

▪ Vice President Cheney said in a television interview that, in order to succeed, the intelligence services would have to

work in the dark, and without much discussion of their methods.

▪ Only years later did the public find out exactly what the new powers include

• Under the authority granted to it by the MON, the CIA established the Rendition, Detention, and Interrogation (RDI)

program, which was designed to secretly capture, transport, detain and interrogate suspected terrorists beyond the reach

of the law.

 The RDI Program was actually comprised of two highly classified sub-programs:

▪ 1) The Extraordinary Rendition Program; and

▪ 2) The Secret Detention Program.

• The Extraordinary Rendition Program

 The Extraordinary Rendition Program was an intelligence-gathering program, whereby foreign nationals suspected of

terrorism were abducted and secretly transferred to the custody of foreign governments for purposes of detention and

interrogation

▪ The CIA, backed by the Bush Administration, advanced the position that foreign nationals detained outside U.S.

sovereign territory were not protected by federal or international laws.

▪ Accordingly, the Extraordinary Rendition Program allowed the CIA to abduct and disappear suspected terrorists to

countries where safeguards against torture and abusive treatment are looser than in the U.S., so that foreign

intelligence agents could detain them incommunicado/without legal process and subject them to brutal interrogation

methods, which would be impermissible under federal and international law

 In other words, through the Extraordinary Rendition Program, the CIA circumvented federal and international laws

prohibiting torture by sending terrorist suspects to countries long condemned for using torture as a tool of

interrogation, so that they could torture them for us and share any resulting intelligence.

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▪ According to one U.S. official involved in rendering individuals to foreign governments: “We don’t kick the

[expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.”

 The CIA specifically selected some of the world’s nastiest regimes as destinations for its detainees.

▪ Foreign nationals suspected of terrorism have been transported to detention and interrogation facilities in Jordan,

Iraq, Egypt, Morocco, and elsewhere.

▪ In the words of former CIA agent Robert Baer: "If you want a serious interrogation, you send a prisoner to Jordan. If

you want them to be tortured, you send them to Syria. If you want someone to disappear -- never to see them again --

you send them to Egypt."

• The Secret Detention Program

 The Extraordinary Rendition Program set the stage for a second pathway to intelligence-gathering: The CIA’s in-house

detention and interrogation program, known as the Secret Detention Program.

 The Secret Detention Program was an intelligence-gathering program, whereby foreign nationals suspected of

terrorism were abducted and secretly transferred to CIA-run secret prisons outside of the United States (known as

“black sites”) for purposes of detention and interrogation

▪ The CIA, backed by the Bush Administration, advanced the position that foreign nationals detained outside U.S.

sovereign territory were not protected by federal or international laws.

▪ Accordingly, the Secret Detention Program allowed the CIA to abduct and disappear suspected terrorists to black

sites so that the CIA could detain them incommunicado/without legal process and subject them to brutal interrogation

methods, which would be impermissible under federal and international law

 In other words, through the Secret Detention Program, the CIA circumvented federal and international laws by

disappearing suspected terrorists to CIA-run secret prisons outside of the United States so that they [the CIA] could

torture them to obtain intelligence.

 The Secret Detention Program was reserved for high value detainees” (HVDs) – people assumed to be terrorist leaders

or planners of the September 11th terror attacks, or to have knowledge about terrorist operations and plots.

▪ Thus, it was HVDs who were abducted and disappeared to black sites for purposes of detention and interrogation

 CIA Interrogation Techniques (Used in Conjunction with The Secret Detention Program)

▪ The CIA had relatively little experience interrogating suspected terrorists so they hired two psychologists/CIA

consultants to “reverse engineer” techniques from the military’s Survival, Evasion, Resistance and Escape (SERE)

Program, which was designed to be defensive in nature and was used to train pilots and other soldiers on how to

resist harsh interrogation techniques and torture should they to fall into enemy hands.

• Enemy = “A totalitarian evil nation with complete disregard for human rights & the Geneva Convention.”

▪ Under CIA supervision, the psychologists adapted SERE into an offensive program, which was designed to place

detainees under such psychologically devastating stress that they become helpless and, thus, more likely cooperate

with interrogators.

▪ The result was 12 “Enhanced Interrogation Techniques” (EITs)

• 12 “Enhanced Interrogation Techniques” (EITs)

 1) Attention Grasp - Grasping the detainee with both hands, with one hand on each side of the collar opening, in a

controlled and quick motion and, in the same motion, drawing the detainee towards the interrogator

 2) Walling - Pulling the detainee forward and then quickly and firmly pushing him into a flexible false wall so

that his shoulder blades hit the wall.

 3) Facial Hold - Placing an open palm on either side of the detainee's face (to hold the detainee’s head immobile)

 4) Facial/Insult Slap - Slapping the detainee with fingers slightly spread apart in the face, between the tip of his

chin and the bottom of his earlobe.

 5) Cramped Confinement - Placing the detainee in a confined space, typically a small or large box, which is

usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last

up to 18 hours.

 6) Wall Standing - Making the detainee stand about 4 to 5 feet from a wall with his feet spread approximately to

his shoulder width, his arms are stretched out in front of him and his fingers rest on the wall to support all of his

body weight. The detainee is not allowed to reposition his hands or feet.

 7) Stress Position - Making the detainee sit on the floor with his legs extended straight out in front of him with his

arms raised above his head or making the detainee kneel on the floor while leaning back at a 45-degree angle.

 8) Sleep Deprivation

 9) Use of Insects - Placing a harmless insect in the confinement box with the detainee.

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 10) Use of Diapers - Making the detainee wear and use (urinate and defecate in) diapers

 11) Waterboarding - Binding the detainee to a bench with his feet elevated above his head, immobilizing his head,

and placing a cloth over his mouth and nose while pouring water onto the cloth in a controlled manner. Airflow

is restricted for 20 to 40 seconds, and the technique produces the sensation of drowning and suffocation.

 12) Mock Burial

• On July 24, 2002, “the attorney general verbally approved the use of 10 of the 12 EITs, which did not include

waterboarding nor mock burial.

 Nonetheless, on July 26, 2002, the attorney general verbally approved the use of waterboarding

• On August 2, 2002, the Director of Central Intelligence was given policy approval to employ the EITs.

▪ While they were not considered "enhanced interrogation techniques," several other techniques were also proposed –

and ultimately approved - for use against detainees, including:

• Solitary confinement,

• Water dousing,

• Dietary manipulation,

• Sensory deprivation,

• Environmental manipulation, and

• Forced nudity.

• Comparing & Contrasting the CIA’s Extraordinary Rendition and Secret Detention Programs

 Although the Extraordinary Rendition Program placed suspected terrorists in the custody of a foreign government and

the Secret Detention Program placed suspected terrorist in CIA custody, both CIA programs had similar modalities and

entailed the same kinds of human rights violations:

▪ The abduction and disappearance of suspected terrorists;

▪ Their extra-legal transfer on secret flights to undisclosed locations around the world; and

▪ Their subsequent incommunicado detention, interrogation, torture, and abuse.

 Moreover, both the Extraordinary Rendition Program and the Secret Detention Program:

▪ Were conducted outside the United States; and

▪ Were designed to place interrogations beyond the reach of the law.

 Finally, the goal of both the Extraordinary Rendition Program and the Secret Detention Program was to gather

intelligence through interrogation - not to bring suspects to trial.

▪ Accordingly, people caught in the system of extraordinary rendition and secret detention were not charged with a

crime, were not allowed access to lawyers, were detained indefinitely, and were not given access to courts where they

could challenge the legitimacy of their detention

Intelligence Gathering by The U.S. Military in Its Own Detention Facilities

• The U.S. Military interrogated detainees held in its detention facilities (U.S. military prisons) at Bagram Air Base in

Afghanistan, Abu Ghraib in Iraq, and Guantanamo Bay in Cuba

• On November 13, 2001, George W. Bush, acting as President and Commander-in-Chief, signed a military order

entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” in which he

declared that foreign nationals suspected of terrorism:

 1) Could be imprisoned by the United States (the US military); and

• They could they be detained indefinitely without being charged

• They had no right to be informed of the evidence against them,

 2) If brought to trial, would be tried, and sentenced by a new kind of military commission.

• No member of the commission need be a lawyer.

• The ordinary rules of military law would not apply.

• Nor would the laws of war.

• Nor, in any conventional sense, would the laws of the United States.

 In 2006, the Supreme Court ruled in Hamdan v Rumsfeld that the Bush Administration's use of military

commissions to try and sentence foreign nationals suspected of terrorism (as was mandated by a November

13, 2001 military order) violated the U.S. Code of Military Justice and the Geneva Conventions, and were

not specifically authorized by any act of Congress

• Accordingly, beginning in the fall of 2001, hundreds of men were taken into custody and interrogated, all around the

world, but especially in Afghanistan, where the U.S. military dropped flyers offering large bounties in exchange for

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information about men with ties to Al Qaeda and the Taliban (“This is enough money to take care of your family, your

village, your tribe for the rest of your life,” one flyer read)

 Detainees later reported that they were sold for between $5,000 and $25,000. (The average annual income in

Afghanistan at the time was less than $300.)

• The Guantanamo Bay (GITMO) Detention Camp

 There remained the question of where to imprison these men. Sending them to Leavenworth and reopening Alcatraz

were both considered but were rejected, because holding suspected terrorists on American soil might allow them to

appeal to American courts and U.S. law.

 Instead, the Bush Administration established the Guantanamo Bay Detention Camp - a U.S. military prison located on

the U.S. Naval Base in Guantanamo Bay, Cuba– to hold the suspected terrorists.

▪ The Guantanamo Bay Naval Base (GITMO) - which occupies 45 square miles on the southeastern end of Cuba - was

selected because it isn’t part of Cuba, and it isn’t part of the United States. It’s one of the world’s last known no

man’s lands. Indeed, according to a member of the Bush Administration, Guantanamo was the “legal equivalent of

outer space.”

 The selection of Guantánamo as the place to imprison men captured in the War on Terror was announced on December

27, 2001

 On January 11, 2002, the first prisoners arrived at Guantánamo shackled, hooded, and blindfolded

 Intelligence Gathering at The Guantanamo Bay (GITMO) Detention Camp

▪ Secretary of Defense Donald Rumsfeld was responsible for authorizing the use of certain interrogation techniques by

military interrogators.

▪ Interrogators were under enormous pressure from the Pentagon for actionable intelligence, including information that

would lead to the capture of bin Laden and other top al-Qaeda and Taliban leaders.

▪ To elicit this information, prisoners were subjected to interrogation techniques that were designed to produce

debility, disorientation, and dread.

• Protracted hooding, sleep deprivation, forced nakedness and recurrent cavity searches, position abuse such as

chaining and tying them to chairs or hooks on the floor or wall, and manipulation of lighting, sound, temperature,

food, and medicine, use of dogs, forcible shaving, and death threats became standard operating procedure to

persuade captives that resistance was futile.

CONTROVERSY SURROUNDING THESE INTELLIGENCE GATHERING METHODS

• In the wake of the terror attacks of September 11th, the Bush Administration:

 1) Detained foreign nationals suspected of terrorism indefinitely, with no meaningful opportunity to challenge the

grounds for their detention

 2) Created military commissions to prosecute and sentence foreign nationals suspected of terrorism, which were

subject to special laws and failed to provide suspected terrorists due process under the law; and

 3) Subjected foreign nationals suspected of terrorism to highly coercive interrogations that violate U.S. and

international prohibitions against torture and cruel, inhuman, and degrading treatment and punishment

HOW WAS THE U.S. ABLE TO USE THESE INTELLIGENCE GATHERING METHODS WITHOUT

VIOLATING U.S. AND INTERNATIONAL LAWS?

• The Bush Administration Adopted Policies Designed to Avoid Both:

 1) U.S. and international anti-torture laws; and

 2) Meaningful judicial review of detention decisions

February 7, 2002 Memo

• In a memo dated February 7, 2002, President Bush designated foreign nationals suspected of having connections to

terrorist groups (such as al Qaeda and the Taliban) as unlawful enemy combatants.

 The administration devised the label “unlawful enemy combatants” to distinguish foreign nationals suspected of

terrorism from lawful combatants.

▪ This distinction is important since, under the terms of the Geneva Conventions:

• When enemy forces capture and detain a lawful combatant - who is a uniformed member of the armed forces

of a party to an armed conflict who carries arms openly and operates under a responsible chain-of-command -

he is deemed a prisoner of war (POW) and, thus, is eligible to receive the protections afforded to POWs under

the Geneva Conventions.

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• By contrast, when enemy forces capture and detain an unlawful combatant, he does not enjoy legal status as a

POW and, thus, is ineligible to receive the protections afforded to POWs under the terms of the Geneva

Conventions.

 The Bush Administration determined that because members of al-Qaeda and the Taliban do not wear identifying

insignia, carry arms openly, or obey the law of war, every member of these terrorist groups is an unlawful combatant

regardless of the member’s conduct at any given time.

• By classifying foreign nationals suspected of having connections to terrorist groups as “unlawful enemy

combatants” rather than as POWs, the Bush Administration stripped them of:

 1) Protection Against Torture & Inhumane Treatment Under the Geneva Conventions

• Common Article Three of the Geneva Convention bars torture, cruel, inhumane, and degrading treatment, as

well as outrages against the human dignity of POWs.

 We signed it to keep our soldiers safe (we’ll adhere to it because we want others to adhere to it)

• Common Article Four of the Geneva Convention protects POWs from rendition to the extent that they would

be subjected to "willful killing, torture or inhuman treatment.”

 2) The Right to Habeas Corpus

• Habeas corpus is the fundamental constitutional right to challenge the lawfulness of your detention in US

federal courts

• A petition for a writ of habeas corpus is a civil action against the jailer - commanding warden to produce the

prisoner at a designated time and place - for the sole purpose of determining whether his detention is in

violation of a constitutional right. (habeas corpus means “bring forth the body”)

• The Bush Administration deprived foreign nationals suspected of terrorism of their right to habeas corpus so

that it could:

 a) Hold them indefinitely without being charged or given a fair trial, in violation of the Due Process Clause of the

5 th Amendment; and

 In June 2004, the New York Times reported that of the nearly 600 detainees at GITMO not more than two

dozen were closely linked to Al Qaeda and that only limited information could have been received from

questionings.

 Most of the detainees were innocent shepherds who were turned in by “bounty hunters” (in response to

military fliers) in exchange for large sums of money

 b) Subject them to highly coercive and degrading (at the very least) interrogations in violation of the 8 th

Amendment prohibition against cruel and unusual punishment

• However, in 2004, the U.S. Supreme Court ruled in Rasul v. Bush that foreign nations detained at the Guantanamo

Bay Detention Center (GITMO) had the right to petition federal courts for writs of habeas corpus to review the

legality of their detention

August 1, 2002 Memo

• The military order, the location of the prisons, and the memos all evaded a variety of legal instruments designed to

protect prisoners from torture. But another obstacle remained: the UN Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, a treaty that the United States had signed in 1988 and ratified in 1994.

 The UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment defined

torture as, "any act by which severe pain or suffering, physical or mental, is intentionally inflicted on a person for such

purposes as obtaining from him or a third person information or a confession…"

 A memo dated August 1, 2002, which was signed by the U.S. Justice Department’s Jay S. Bybee and sent to White

House counsel Alberto Gonzales, attempted to make a distinction between acts that are “cruel, inhuman, or degrading”

and acts that constitute torture.

 This memo, which is commonly known as the “Torture Memo” asserted that cruel, inhuman, or degrading treatment

would not constitute physical torture unless "it was equivalent in intensity to the pain accompanying serious physical

injury, such as organ failure, impairment of bodily function, or even death," and that cruel, inhuman, or degrading

treatment would not constitute mental torture unless it caused psychological harm that lasted "months or even years."

 By redefining torture in this manner, the Torture Memo authorized what has come to be called “torture lite” (i.e.

stripping, exposure to extreme temperatures & light, false threats to family members, & the use of dogs.)

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THE JURISPRUDENCE OF TORTURE/ENHANCED INTERROGATION TECHNIQUES

NORMATIVE JURISPRUDENCE

A) The Relationship Between Law & Morality

 Deontological Ethical Theories

▪ Natural Law

• According to Natural Law, enhanced interrogation techniques are always immoral

▪ Kant's Ethical Theory

• According to Kantian Ethics, enhanced interrogation techniques are always immoral

• Principle of Universal Law

 Since, we have a duty to treat everyone fairly/equally (hold everyone to the same standard), subjecting a foreign national

suspected of terrorism to enhanced interrogation techniques when we would not want someone to subject us (or our

soldiers or fellow U.S. citizens) to them, is immoral

▪ ("We can do it, but I wouldn’t want others to be able to do it”)

• Principle of Dignity

 Since, all human life has [equal] value, we have a duty to treat all people with dignity (as an end unto

themselves/not merely as a means to an end)

 Enhanced interrogation techniques are immoral because it treats the detainee as a means to an end (we are

subjecting him to enhanced interrogation techniques to obtain actionable intelligence – rather than considering the

impact that it will have on him)

 Teleological Ethical Theories

▪ Utilitarianism

• Whether enhanced interrogation techniques are moral depends on whether they produce the greatest good for the

greatest number of people.

• We must make this determination (determine whether enhanced interrogation techniques are moral/immoral) on a

case-by-case basis by tallying the positive and negative consequences of (the good and bad that will result from) of

each person’s decision to use them to gain intelligence.

• When determining the morality of enhanced interrogation techniques, which ethical theory would weigh the

potentially positive consequences that enhanced interrogation techniques might have for some people against the

potentially negative consequences that they might have for others?

• Potentially Positive Consequences of Enhanced Interrogation Techniques

 It can produce actionable intelligence

• Potentially Negative Consequences of Enhanced Interrogation Techniques

 Any intelligence gathered under these conditions lacks reliability/credibility.

▪ People will say/admit to anything (even things they know to be false) to make torture stop. ▪ These conditions often lead to insanity- people have no idea what they’re admitting to.

 Makes other countries hate us more and want to retaliate.

 Puts our troops at risk

 Puts our citizens at risk (i.e. beheadings)

 Breeds terrorists (helped recruit people to join terrorist groups)

▪ Ethical Altruism

• Whether enhanced interrogation techniques are moral depends on why a person used them:

 If a person used enhanced interrogation techniques for altruistic/unselfish reasons/for someone else's benefit then

they’re moral (i.e. to save lives)

 If a person used torture/enhanced interrogation techniques for selfish reasons/for her own benefit, then they’re

immoral (i.e., because he obtained pleasure from torturing someone)

▪ Ethical Egoism

• Whether enhanced interrogation techniques are moral depends on why a person used them:

 If a person used torture/enhanced interrogation techniques for selfish reasons/for her own benefit, then they’re

moral (i.e., because he obtained pleasure from torturing someone)

 If a person used torture/enhanced interrogation techniques for altruistic/unselfish reasons/for someone else's

benefit then they’re immoral (i.e. to save lives)

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B) Freedom & The Proper Limits of the Law

• Principles Justifying Governmental Restrictions on The Use of Enhanced Interrogation Techniques

 The Harm Principle

▪ The government may prohibit enhanced interrogation techniques only if necessary to prevent the interrogator from

causing [physical or psychological] harm to others

 The Principle of Legal Paternalism

▪ The government may prohibit enhanced interrogation techniques if necessary to prevent the interrogator from causing

physical or psychological harm to themselves

 The Principle of Legal Moralism

▪ The government may prohibit enhanced interrogation techniques if society - as a whole - deems them to be immoral