Interrogation's law.

• Author: Levi, William Ranney

NOTE CONTENTS INTRODUCTION I. THE LAW'S LATITUDE: SEPTEMBER 11, 2001 TO THE PRESENT A. Law and Interrogation: The Central Intelligence Agency The Torture Statute 2. The Fifth Amendment 3. Hamdan v. Rumsfeld and the Military Commissions Act B. Law and Interrogation: The Department of Defense II. NAVIGATING LEGAL STRICTURES: ABSOLUTE BANS AND VAGUELY DEFINED ABUSE, 1949 TO 1973 A. Geneva Conventions and the Universal Declaration of Human Rights B. Law and Interrogation: The Central Intelligence Agency 1. Coercion Within the Law 2. Ethics, Efficacy, and Legal Strictures C. Law and Interrogation: The Department of Defense 1. Coercion Within the Law 2. Ethics, Efficacy, and Legal Strictures III. AVOIDANCE: INTERROGATION BY OTHERS, 1973 TO 2001 A. Coercion and the Law B. Coercion by Proxy CONCLUSION INTRODUCTION

The acquisition of information through interrogation traditionally has been a central component of military and intelligence operations. (1) The need to extract actionable intelligence has, if anything, become more salient since September 21, 200l. A dispersed and "different kind" of enemy with no flag or uniform, an inadequate understanding of this new foe's organization and operations, and pressure to disrupt future surprise attacks have made interrogation fundamental to the War on Terror. (2)

Unlike ordinary police interrogation, interrogation undertaken to acquire intelligence information is not designed primarily to elicit admissions or information that may be used in a conventional prosecution. As noted by Central Intelligence Agency (CIA) interrogation manuals, "Admissions of complicity are not ... ends in themselves but merely preludes to the acquisition of more information." (3) The interrogation goal, as reflected in U.S. Army interrogation manuals, is to "obtain the maximum amount of usable information.... in a lawful manner, in a minimum amount of time." (4) This simply stated objective expresses well the tension inherent to interrogation between obtaining timely intelligence and observing the legal constraints that are understood to apply.

In 2002, the Bush Administration approved the CIA's use of certain coercive interrogation techniques, reportedly including temperature extremes, shackling, stress positions, sleep and sensory deprivation, loud noises, bright lights, nudity, isolation, shaking, head and stomach slaps, and waterboarding--a technique designed to simulate the sensation of drowning. (5) The CIA was not alone in its use of coercive interrogation. A Department of Defense (DoD) "Special Interrogation Plan" authorized eighteen to twenty hours of questioning per day for forty-eight out of fifty-four days, removal of clothing, and exposure to dogs, cold, strobe lights, and loud music. (6)

The use of such pressure techniques and the various legal and policy decisions that authorized them have been variously described as "uncharted," (7) "long condemned," (8) "new and aggressive," (9) and as a fundamental transformation constituting a "New Paradigm." (10) The New York Times reported that "[f]or decades before 2002, the United States had considered several of the methods [ultimately approved for use by the CIA] to be illegal torture." (11) One author, whose works prompted both the Senate and House Judiciary Committees to hold hearings, claimed that the "U.S. military's long-established constraints on cruelty and torture, dating back to President Lincoln in 1863, were ... circumvented" (12) and "discarded," (13) and that the newly authorized interrogation program "turned its back on this tradition." (14) Some take a different approach in characterizing the Bush Administration's legal framework, but these voices also assume a dramatic break with the past--a break justified by exigency. Former Attorney General John Ashcroft posed and answered the question of interrogation policy change: "[W]e made it through the Second World War with one set of rules and we made it through the Cold War with another set of rules; shouldn't we just lock in on all those things and pretend the world's the same? It's not." (15)

A prominent public television series said that these methods are the "harshest techniques ever authorized for use by American soldiers." (16) The Washington Post reports that the Department of Justice "rejected a decades-old U.S. ban on the use of 'mind-altering substances' on prisoners." (17) A New York Times retrospective on the creation of the Bush Administration's interrogation policy pronounced conclusively that "[n]ever in history had the United States authorized such tactics." (18) Policymakers, elected officials, legal scholars, and opinion leaders have been no less certain in their pronouncements about departures from legal tradition and unprecedented aggressiveness in the interrogation context. (19)

The widespread assumption (20) that the Bush administration's interrogation policies represent a dramatic repudiation of and stark departure from American traditions is a central premise of both sides of the extensive and heated debate about the justifiability, efficacy, and legality of coercive means of interrogation. (21) But as this Note will show, this widespread assumption is simply wrong. There has been a remarkable continuity between interrogation policies that prevailed after 9/11 and those employed in previous eras of heightened security threats. For the fifty years prior to 9/11, the United States consistently professed high ideals about its interrogation policies but at the same time authorized aggressive interrogation policies when the security threat seemed (to the President and intelligence and military officers) to warrant them. Just as happened after 9/11, for decades before 9/11 CIA and military officials crafted interrogation policies with a great deal more flexibility than the high-minded legal prohibitions of coercive tactics appeared to many to permit. In fact, as this Note will show, every interrogation method allegedly authorized since 9/11, with the possible exception of waterboarding, (22) was authorized at times before 9/11 and was considered to be consistent with the reigning legal framework. (23) Furthermore, and almost without exception, the techniques approved after 9/11 for military interrogations of unlawful combatants would have been understood to fall within the legal constraints of the Geneva Protections for protected prisoners of war at one point or another pre-9/11. Several techniques (for example, sleep deprivation, and standing as a stress position) that were understood at times before 9/11 as lawful by the military for use on protected prisoners of war were more coercive by degree than the same techniques authorized for use on unlawful combatants post-9/11. Other techniques previously authorized (such as threats of violence) were considered techniques of uncertain legality and specifically ruled out as too coercive after 9/11 for use by the military on unlawful combatants. With the possible exception of waterboarding, the CIA techniques reportedly authorized post 9/11--such as sleep and sensory deprivation, stress positions, and some direct physical duress--had been authorized at points before 9/11 and understood to fit within the then-relevant legal architecture.

In short, the post-9/11 approach to coercive interrogation, contrary to conventional wisdom, is not new. And there are other aspects of the United States's post-9/11 interrogation regime that have precursors dating to World War II. First, both before and after 9/11, the institutions that promulgated various interrogation policies questioned or resisted the use of some coercive measures. They did so less as a reaction to evidence of inefficacy than because of a combination of independent instrumental considerations concerning the security threat as well as a sense of what constituted ethical or legally permissible behavior. Both before and after 9/11 these concerns led the government to avoid certain types of coercive interrogation and to develop novel yet highly coercive methods that appeared at the time more obviously legal and palatable.

Second, both before and after 9/11, applicable proscriptive language in the various legal instruments governing interrogation was opaque and open to interpretational latitude. This meant that context became an important factor in dictating the ultimate interpretations that guided policy. Even if the relevant legal terms remained constant over the course of different conflicts and periods, to assume an unchanging interpretation of the legal rules is to make possible the erroneous conclusion that the law, prior to 9/11, had constricted permissible interrogation methods in the same way regardless of place and time. This quite clearly was not the case for U.S. interrogation policy, which has varied greatly in response to context despite unchanging legal language. Absolute bans on vaguely defined abuse have provided, and continue to provide, great interpretative latitude. But the conventional wisdom--assuming unprecedented change post-9/11 in what the legal rules were interpreted to allow--has gone unchallenged.

This is, at least in part, a consequence of the Bush Administration's flawed and careless legal work (24)--such as the conclusion that the legal definition of torture was limited only to pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," and the argument that the President's Commander-in-Chief power allows him complete discretion to authorize interrogation by torture despite a federal criminal statute to the contrary. (25) This type of legal reasoning has made it appear that for coercive interrogation to be considered lawful, the existing legal regimes had to be eviscerated through an unprecedentedly crabbed interpretation and outrageous assertions of executive prerogative to ignore the law. This, again, is false. Such extreme legal...