Detention and interrogation in the post-9/11 world?

• Author: Roosevelt, Kermit, III

1. EXECUTIVE ACTION: THE ROAD TO GUANTANAMO

   On September 11, terrorists fly hijacked airliners into the World Trade Center and the Pentagon. Over 3,000 Americans are killed. The nation-indeed the world--is stunned. The French paper Le Monde runs the headline: "We are all Americans." (1) There are candlelight vigils outside the United States Embassy in Tehran. (2)

   The American government responds immediately. On September 18, Congress passes a joint resolution authorizing 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 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (3) The lawyers of the Executive branch are also at work. A September 25 memorandum from Deputy Assistant General John Yoo of the Office of Legal Counsel (OLC) asserts that the President can "deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11." (4) The Framing generation, the memo explains, "well understood that declarations of war were obsolete." (5) No statute, it concludes, "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." (6)

   Pursuant to either the limited grant of power in the congressional authorization for the use of military force or the boundless one suggested by the OLC, the Executive begins military action. On October 7, 2001, American and British forces launch a bombing campaign against the Taliban and Al-Qaeda in Afghanistan. Land offensives follow. On November 13, President Bush issues an executive order authorizing the Secretary of Defense to detain any individual who is not a United States citizen and whom the President determines to be a terrorist. Prisoners come into the hands of U.S. forces by various means. Some are battlefield captures; some are turned over by the Northern Alliance or Pakistani authorities. To swell this number, the U.S. offers cash bounties for members of the Taliban and Al-Qaeda. In November 2001, Defense Secretary Donald Rumsfeld claims that the leaflets are "dropping like snowflakes in December in Chicago." (7) They promise "wealth and power beyond your dreams ... enough money to take care of your family, your village, your tribe for the rest of your life." (8) Other prisoners are apprehended in places far removed from Afghanistan, including The Gambia and Bosnia. (9)

   Executive lawyers have been considering the question of where to hold the detainees. On December 28, 2001, John Yoo and Patrick Philbin, a fellow Deputy Assistant Attorney General, complete a memo addressing the issue of "whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the U.S. naval base at Guantanamo Bay, Cuba." (10) The answer, the memo concludes, is no. (11) For this reason, the memo suggests, Guantanamo is superior to other locations considered as possible detention sites, such as Wake or Midway Island. (12)

   Executive officials' public statements at this time suggest the Guantanamo detainees are a select group, "among the most dangerous, best-trained, vicious killers on the face of the earth." (13) They are "the worst of a very bad lot ... very dangerous people who would gnaw hydraulic lines in the back of a C-17 to bring it down." (14) Within the government, the information is more equivocal. In January 2002, then-White House Counsel Alberto Gonzales asks the military to provide him with a one-page form for each prisoner so that prosecutors can start selecting those who will be charged with war crimes. (15) Intelligence officers respond that they do not have enough evidence on most prisoners to complete the forms. The fact that they cannot understand Afghan culture handicaps their intelligence gathering efforts; they cannot sort valuable tips from attempts to use Americans as retaliation in inter-clan feuds; they cannot even tell if their interpreters are loyal. (16) Classified intelligence reports describe detainees as "farmers, cab drivers, cobblers, and laborers." (17) In February 2002, Major General Michael Dunlavey concludes that as many as half of the detainees have "little or no intelligence value." (18)

   The Executive has also been making plans about what to do with the detainees. As Guantanamo is intended to be outside the jurisdiction of courts, the detainees are intended to be outside the bounds of law. The Executive

   Order of November 13, 2001, authorizes the creation of military tribunals to try terror suspects. (19) It also provides that no individual subject to the order shall

   be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal. (20) A January 2002 memo from Yoo argues that neither Al-Qaeda nor Taliban members are protected by the Geneva Conventions or the War Crimes Act. (21) A February 7 memo from the President endorses this, reasoning Al-Qaeda detainees are unprotected because Al-Qaeda is not party to the Geneva Convention. (22) As for the Taliban, the President's memo summarily determines that all Taliban detainees are unlawful combatants and therefore disqualified from claiming prisoner of war status under the Third Geneva Convention. (23)

   On February 26, 2002, Jay Bybee submits a memo to William Haynes, the General Counsel of the Department of Defense. The subject of the memo is "potential legal constraints applicable to interrogations of persons captured by U.S. armed forces in Afghanistan." (24) The memo focuses on the effect that failure to provide Miranda warnings and legal representation might have on subsequent criminal prosecution in federal court; it concludes that the effects will be minor. (25)

   On August 1, Bybee, with Yoo's assistance, submits a memo posing some different questions, such as what interrogation techniques might violate the federal law prohibiting torture. (26) Not many, they conclude. To qualify as torture, a technique must inflict pain "equivalent in intensity to the pain accompanying serious physical injury such as organ failure." (27) Mental pain or suffering "must result in significant psychological harm of significant duration, e.g., lasting for months or even years." (28) The technique must be used with the specific intent to inflict such pain. Possibly, the memo suggests, an interrogation technique is not torture if it is being used to extract information rather than to inflict pain.

   Even conduct meeting these requirements may be excused in some circumstances on the grounds of necessity or self-defense. Last, the Commander-in-Chief override offers a safe harbor. "Any effort to apply" the torture ban "in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants ... would be unconstitutional." (29) As Yoo later tells a New Yorker reporter, "torture as an interrogation technique" is "the core of the Commander-in-Chief function. [Congress] can't prevent the President from ordering torture." (30)

   This legal analysis of the range of possible techniques does not answer the policy question of which ones should be used. The Army Field Manual on Interrogations cautions,

   Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear." (31) In October 2002, however, General James Hill reports that "some detainees have tenaciously resisted our interrogation methods." (32) Hill asks for review of proposed "counter-resistant techniques."

   The proposed techniques are divided into three categories. Category I includes basic questioning, yelling, the use of multiple interrogators, and deception, including "false flag": the representation that an interrogator is from "a country with a reputation for harsh treatment of detainees." (33) Category II techniques require approval from the officer in charge. These techniques include the use of stress positions, falsified documents, isolation, sensory deprivation, hooding, forced shaving and nudity, and the use of twenty-hour interrogations. Standing is given as an example of a stress position. (34)

   Category III techniques require approval from the commanding general at Guantanamo and legal review by the commander of the U.S. Southern command. They include mock executions, threatened killings of family members, exposure to cold weather or water, waterboarding, (35) and mild physical contact. An accompanying memo from military attorney Diane Beaver asserts that none of the proposed Category III techniques violates the U.S. Constitution or the federal torture statute as long as the intent in using such methods is to secure information. (36) Beaver's analysis relies heavily on the argument that an interrogator using these techniques would lack the specific intent to inflict suffering. (37) The Army Field Manual, by contrast, lists stress positions as an example of physical torture and mock executions as an example of mental torture. (38) Indeed, the federal torture statute lists mock executions as an example of torture by the infliction of severe mental pain or suffering. (39) Given...