Posted by Dale Carpenter:
Definitions and defaults in torture:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239950901
Torture, as prohibited by U.S. law, is treatment that inflicts "severe
physical or mental pain or suffering." But how do we know when a
particular interrogation technique imposes "severe physical" or
"severe mental" pain or suffering?
To answer that question, the [1]2002 Bybee memo released Thursday
relies heavily on the lessons learned from a U.S. interrogation
training program for military personnel called Survival, Evasion,
Resistance, Escape (SERE). In SERE training, U.S. military personnel
have been subjected to the very techniques proposed for suspected Al
Qaeda agents -- including the most extreme of the techniques, like
extended sleep deprivation and waterboarding. The discussion is at pp.
4-6 in the Bybee memo. Basically, the memo says that the CIA has
concluded based on consulting with SERE experts that these methods
have caused no "severe physical or mental" harm to U.S. military
personnel subjected to them.
There's a lot more in the memo but, frankly, it seems to me that's the
heart of it. It's not really a "legal" conclusion calling for the
specialized training of a lawyer, in the sense that you can find it in
a statute or a binding precedent, but an experiential and empirical
one.
So my question is this: how relevant is the SERE experience? Let's
assume it's true that U.S. personnel in training programs have
suffered no severe mental or physical consequences, and let's assume
the enemy detainee would be subjected to no more severe version of the
same techniques. (The latter assumption turned out to be untrue:
waterboarding as used by the CIA was more intensive than that used in
SERE training, according to a [2]May 10, 2005 Steven Bradbury memo to
the CIA, see p. 41 n. 51).)
It's one thing to know you are part of a controlled training program
administered by your country's own personnel who have no interest in
killing or permanently damaging you, and also to know that however
awful it is there will be an end of it. It's another thing to be
captured by the enemy and subjected to the same technique, but with no
assurance of control or a time limit. The former "interrogator" you
know to be acting with your health and safety in mind; the latter, as
far as you know, has no such concerns beyond getting information from
you.
Maybe the objective level of physical pain or suffering is the same
whether the technique is inflicted in a training program or in an
enemy interrogation. But wouldn't the prospect of such techniques
without end and without control, inflicted by an enemy, risk much
greater (and perhaps longer term) mental pain or suffering?
Bybee doesn't even seem aware of these differences, much less account
for them in his memo. To his credit, Bradbury saw the limited
relevance of the SERE experience in his [3]2005 memo to the CIA, at p.
6:
Although we refer to the SERE experience below, we note at the
outset an important limitation on reliance on that experience.
Individuals undergoing SERE training are obviously in a very
different situation from detainees undergoing interrogation; SERE
trainees know it is part of a training program, not a real-life
interrogation regime, they presumably know it will last only a
short time, and they presumably have assurances that they will not
be significantly harmed by the training.
Of course, despite the weakness of the evidence available, Bradbury
also concluded that the proposed techniques -- including waterboarding
-- were not torture. But at least he was candid about it.
There is some discussion of this in the comments to [4]Orin's post of
yesterday, including from at least [5]one commenter who implies
personal knowledge of SERE. It is claimed that in SERE the trainee
loses any sense of safety, time, or perspective. It's hard to argue
with actual experience, but if you haven't been through enemy
interrogation you can't really know how much worse it might be than
SERE using the same techniques. So you can't know how much more likely
it is to inflict severe mental pain or suffering. And Bybee
acknowledges that there is "no empirical data on the effect of these
techniques, with the exception of sleep deprivation." p. 6. (And the
"empirical data" for the long-term physical and mental effect of sleep
deprivation up to 11 days, the authority sought by the CIA in 2002,
consisted of one case.)
With no statutory guidance, no precedent, the opinions of a few CIA
consultants he did not personally consult and whose possible
institutional and other biases he did not question, and mainly the
reported results of the SERE program to guide him, how did Bybee know
whether the proposed techniques were torture?
The answer, I think, does not come in the anodyne prose of Bybee's
"legal" analysis. It is implicitly contained on the very first page of
his memo to the CIA:
The interrogation team is certain that [Abu Zubaydah] has
additional information that he refuses to divulge. Specifically, he
is withholding information regarding terrorist networks in the
United States or in Saudi Arabia and information regarding plans to
conduct attacks within the United States or against our interests
overseas. Zubaydah has become accustomed to a certain level of
treatment and displays no signs of willingness to disclose further
information. Moreover, [CIA] intelligence indicates that there is
currently a level of "chatter" equal to that which preceded the
September 11 attacks. In light of the information you believe
Zubaydah has and the high level of threat you believe now exists,
you wish to move the interrogations into what you describe as an
"increased pressure phase."
What Bybee is describing here can't quite be called a "ticking bomb"
scenario one might see in a movie or read about in a law review
article, but it's about as close as one gets in real life. With the
danger believed to be high and the detainee obviously knowledgeable,
time becomes critical.
One can imagine a couple of default rules in cases of uncertainty
about what constitutes torture: (1) err on the side of respecting the
human dignity and health of the detainee, in accordance with
longstanding national and international commitments and aspirations,
or (2) err on the side of getting information believed to be necessary
to protect human life, using techniques believed to work. The choice
of default depends on which values seem paramount at the moment. It
seems silly to think that these default rules and the values they
represent are never in tension. And it seems too hard and pure to
imagine that there aren't cases and times, like America in 2002, where
one might sometimes choose the latter default rule over the former.
Where one could fault Bybee is in his initial call about which
techniques are close to the line of torture and thus subject to an
uncertainty default rule at all. Putting someone in uncontrollable
fear of imminent death by drowning -- as in water boarding -- is a
death threat. Forcing someone to stay awake for up to 11 days, perhaps
by making them stand, shackled to a ceiling or wall (the precise
method for keeping them awake is, incredibly, not even considered in
the Bybee memo), at least runs a serious risk of causing severe
physical or mental pain or suffering.
Bybee had before him a prospect we do not confront. If he refused to
authorize the techniques the CIA told him it wanted to use, and on
that basis the CIA did not use the techniques and did not get further
information from Zubaydah, and a devastating terrorist attack
followed, his high regard for human dignity would today be seen as a
foolish and even calloused disregard for human lives.
All of this may argue for more precision in the definition of torture,
including the banning of specific techniques of interrogation in
federal law (as opposed to executive policy). Of course that would
limit the flexibility one needs to meet unforeseen and dire
circumstances. But one way or another torture will be given clearer
definition: either in open democratic debate or in secret memos and
prisons.
References
1. http://luxmedia.vo.llnwd.net/o10/clients/aclu/olc_08012002_bybee.pdf
2.
http://luxmedia.vo.llnwd.net/o10/clients/aclu/olc_05102005_bradbury46pg.pdf
3.
http://luxmedia.vo.llnwd.net/o10/clients/aclu/olc_05102005_bradbury46pg.pdf
4.
http://technorati.com/search/http%3a%2f%2fvolokh.com%2farchives%2farchive_2009_04_12-2009_04_18.shtml%231239917171
5. http://volokh.com/posts/1239917171.shtml#565352
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
