Tortured Justice:

The Policies and Practices

"The chief mission of U.S. law enforcement.is to stop another attack and apprehend any accomplices to terrorists before they hit us again. If we can't bring them to trial, so be it."

- Attorney General John Ashcroft, National Security Council Meeting, September 12, 2001 (as reported by Bob Woodward in Bush at War)

 "I know that some people question if America is really in a war at all. They view terrorism more as a crime, a problem to be solved mainly with law enforcement and indictments. After the chaos and carnage of September the 11^th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States, and war is what they got."

- President George W. Bush, State of the Union Address, January 20, 2004

Since the September 11 attacks, the Bush Administration has aggressively promoted "law-free zones," denying the applicability of certain core protections under U.S. and international law to detainees held in secret CIA custody and at Guantánamo Bay. Among these core protections is the right to humane treatment during interrogation. This chapter describes the administration's policies and practices of coercive interrogation and the legal regime created to accommodate them.

In early 2002, CIA officials reportedly believed that captured al Qaeda suspects were withholding valuable intelligence.[3] They were particularly concerned about a suspect named Abu Zubaydah. It has been widely reported that the Federal Bureau of Investigation (FBI) had already obtained Zubaydah's cooperation using traditional law enforcement methods.[4] Nevertheless, senior CIA officials are said to have thought that more aggressive interrogation tactics would yield more information more quickly.[5]

The precise moment when CIA interrogators began using abusive interrogation techniques is not known. But in mid-2002, in response to queries about the outer boundaries of permissibility – and likely also to protect interrogators who had already engaged in torture – then-White House Counsel Alberto Gonzales asked the Department of Justice's Office of Legal Counsel (OLC) to interpret interrogation standards under the U.N. Convention Against Torture (CAT). The CAT was ratified by the United States in 1994 and implemented by federal statute, known as the Anti-Torture Act, the same year.[6]

Then-Assistant Attorney General Jay S. Bybee authored one of the OLC opinions. The "Bybee memorandum," as it became known, stated that painful interrogation techniques were permissible so long as the pain caused was less intense than that accompanying organ failure or death. Moreover, if the interrogator's objective was to obtain information – rather than inflict pain – no legal liability would attach, even if severe pain and suffering were "reasonably likely to result."[7] The Bush Administration further took the view that the CAT's prohibition against cruel, inhuman and degrading treatment did not apply to non-citizens held abroad.[8]

Interrogation techniques authorized by the Department of Justice (DoJ) and used by the CIA reportedly included:

• grabbing and shaking prisoners;
• slapping prisoners to cause pain and fear;
• forcing prisoners to stand for upwards of 40 hours;
• exposing prisoners to extremely cold temperatures for prolonged periods and dousing them in cold water;
• waterboarding prisoners by binding them to a board, wrapping their faces in plastic and pouring water over them; or strapping them down, putting a washcloth over their faces and pouring water into their noses;
• confining prisoners in coffin-style boxes;
• keeping prisoners in darkness without access to light; and
• blaring continuous loud music at prisoners. [9] (For a detailed description of the CIA's interrogation techniques, see Appendix C).

The Bybee memorandum was leaked in 2004, causing enormous public outcry. Thereafter, the Justice Department repudiated the memo, and CIA Inspector General John Helgerson found that the agency's interrogation techniques constituted cruel, inhuman and degrading treatment.[10] In December 2004, the Bybee memorandum was officially replaced by another memorandum that included a new analysis of the torture prohibition. But the new memorandum does not disavow the President's commander-in-chief authority to authorize torture, nor does it explicitly define torture or even state that any specific interrogation techniques are prohibited.[11]

In response to the disclosures about abuse at Abu Ghraib and leaks of the Bybee memorandum and other administration documents justifying abuse, in 2005, Congress passed the Detainee Treatment Act (DTA), which prohibits the use of cruel, inhuman or degrading treatment of prisoners in U.S. government custody.[12] In 2006, the Supreme Court held in Hamdan v. Rumsfeld that the humane treatment requirements of Common Article 3 of the Geneva Conventions apply to captured al Qaeda suspects.[13]

After Hamdan, the CIA temporarily suspended its "enhanced interrogation program."[14] But it appears to be up and running again. On July 20, 2007, the president issued Executive Order No. 13440 purporting to interpret Common Article 3 as applied to interrogation. The order not only fails to rule out the use of "enhanced" techniques, but it actually appears to permit "willful and outrageous acts of personal abuse" so long as their purpose is to gain intelligence rather than to humiliate or degrade the prisoner.[15] During a television interview in October 2007, CIA Director General Michael Hayden acknowledged the agency's continued use of harsh techniques. Although he declined to discuss specific practices, he stated that they may include methods that are prohibited in military interrogations.[16] In addition, although Attorney General Michael Mukasey has said that waterboarding is not part of the CIA's current program, he has refused to say whether it is illegal under all circumstances, or to rule it out as a future interrogation technique.[17]

In October 2002, under pressure to obtain intelligence, Joint Task Force 170 (JTF-170), the military interrogation unit stationed at Guantánamo, sought to use "more aggressive interrogation techniques" on detainees.[18] The request came just two months after the Bybee memorandum was written, opening the door for approval of abusive tactics. On December 2, 2002, then-Secretary of Defense Donald Rumsfeld approved various harsh techniques, including:

• "interrogator identity" (interrogator impersonates a citizen or interrogator from a country known for harsh treatment of prisoners);
• stress positions, such as standing, for up to four hours;
• isolation for up to 30 days, with extensions beyond 30 days upon Commanding General approval;
• deprivation of all light and auditory stimuli;
• hooding during transportation and questioning;
• 20-hour interrogations;
• the use of a prisoner's individual phobias, such as fear of dogs, to induce stress; and
• light pushing.[19]

Numerous military personnel and lawyers objected to the use of these techniques, including the Commander of the Criminal Investigation Task Force, Colonel Brittain P. Mallow, and Navy General Counsel Alberto Mora. Mora described the techniques as "at a minimum, cruel and unusual treatment and, at worst, torture."[20] In response to the criticism, in January 2003, Secretary Rumsfeld rescinded his approval of the techniques and authorized a working group to make further recommendations.[21] In April 2003, Secretary Rumsfeld personally approved a new list, which included:

• dietary manipulation;
• hooding and other sensory deprivation techniques;
• environmental manipulation;
• sleep adjustment;
• "false flag" (leading prisoners to believe that they have been transferred to a country that permits torture); and
• isolation.[22]

These techniques appear to have been part of Guantánamo interrogation policy until March 2005, when the Pentagon declared the Working Group report a "non-operational 'historical' document."[23]

CSRTs Rely on Coerced Evidence to Support Detention

The Defense Department (DoD) established Combatant Status Review Tribunals (CSRTs) in response to two 2004 Supreme Court rulings holding that Guantánamo detainees must be permitted to challenge their detention before neutral decision makers.[24] The order establishing CSRTs expressly states that detainees have already been judged enemy combatants "through multiple levels of review by officers of the Department of Defense" before their hearings.[25] Thus, three-member panels of military officers simply review prior enemy combatant determinations made by their superiors. Administrative Review Boards (ARBs) subsequently conduct annual status reviews.

CSRT panels may consider any information "relevant and helpful to a resolution of the issues," and they must presume that the evidence presented is "genuine and accurate."[26] There is no prohibition against evidence obtained through coercion or even torture. The DTA provides only that CSRTs consider "(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and (B) the probative value (if any) of any such statement."[27]

From 2004 to 2007, more than 570 CSRT hearings were conducted, with all but 38 detainees designated as enemy combatants.[28] The detainees had no meaningful opportunity to contest their designations, no legal representation at their hearings, and no access to classified evidence.[29] Even CSRT panel members were denied access to relevant classified evidence and were presented primarily with post-detention custodial and interrogation reports regarding other detainees. In addition, administration-imposed time limitations and budget constraints precluded CSRT panels from hearing from witnesses from outside Guantánamo.[30] Due at least in part to these limitations, CSRT panel members made little effort to assess the veracity of detainees' allegations of innocence or abuse. In fact, in a number of instances, panel members failed even to wait for the results of abuse investigations before making their determinations.[31]

Finally, detainees were not entitled to meaningful review of their designations. The writ of habeas corpus traditionally allows for a speedy opportunity to contest the factual basis for detention, with the assistance of counsel, before a neutral decision maker. The DTA, however, only permits detainees to file challenges to the D.C. Circuit Court of Appeals, and it does not allow them to rebut the government's evidence or the means by which it was obtained – only to address whether the government adhered to its own procedures and whether the procedures were lawful.[36] In fact, the D.C. Circuit must presume the accuracy of evidence presented to CSRT panels, even where it was withheld as classified from detainees. At issue in the consolidated cases of Boumediene v. Bush and Al-Odah v. United States, now under consideration by the Supreme Court, is whether this limited DTA review provides an adequate substitute for traditional habeas review.[37]

The MCA Allows Coerced Evidence at Trial

The Bush Administration has consistently maintained that detainees who are designated enemy combatants are not protected by the U.S. Constitution and are outside the jurisdiction of federal courts.[38] Prior to 2004, the administration also contended that the CAT did not apply to non-citizens held outside the United States.[39] The administration further argued that detainees were not entitled to the protections of the Third Geneva Convention Relative to the Treatment of Prisoners of War, or to the determination of prisoner of war (POW) status, or even to the minimum humane treatment standards of Common Article 3. The administration position thus allowed unchecked executive branch discretion in the treatment and prosecution of detainees at secret detention facilities and at Guantánamo (and set the stage for the migration of abusive interrogation practices to Afghanistan and Iraq).

The Supreme Court, however, struck down several key components of the administration's legal theories in three critical opinions in 2004 and 2006.[40] The last decision from that period was Hamdan v. Rumsfeld, which rejected the military commissions as originally created by President Bush. The Hamdan Court held that the commissions violated the Uniform Code of Military Justice and the Geneva Conventions.[41]

Following the Supreme Court's decision in Hamdan, the Bush Administration obtained congressional authorization through the Military Commissions Act of 2006 (MCA) for a military commission regime that would allow it to perpetuate and exploit many of its previous legal theories. The MCA expressly authorizes the admission of statements obtained by coercion, provided that "the totality of the circumstances renders the statement[s] reliable and possessing sufficient probative value" and their introduction serves the "best interest of justice." It even permits the introduction of statements obtained by cruel, inhuman or degrading treatment (CID), provided the statements satisfy the above requirements and were obtained prior to the enactment of the DTA.[42]

The MCA ostensibly excludes evidence "obtained by use of torture."[43] But it does not specify which interrogation methods constitute torture, thus leaving it up to military commission judges to draw the line between torture and CID. (See textbox above). Testifying before the Senate Judiciary Committee in December 2007, Brigadier General Thomas W. Hartmann, legal advisor to the DoD's appointing authority for military commissions, declined to say whether statements extracted through waterboarding would be barred as torture evidence. Rather he explained, "[i]f the evidence is reliable and probative, and the judge concludes that it is in the best interest of justice to introduce that evidence.those are the rules we will follow. Those are the rules we must follow."[44]

As far as the Bush Administration is concerned, none of the CIA's interrogation techniques – including waterboarding – constitutes torture under the circumstances in which they have been used. Attorney General Michael Mukasey has said that waterboarding may be illegal under certain circumstances but permissible under others. He describes the matter as a "balancing test of the value of doing something as against the cost of doing it."[45] Taking the analysis a step further, Assistant Attorney General Steven Bradbury has specifically approved the CIA's use of waterboarding, stating: "Our office has advised the CIA when they were proposing to use waterboarding that the use of the procedure subject to strict limitations and safeguards applicable to the program was not torture – did not violate the anti-torture statute, and I think that conclusion was reasonable."[46]

Other MCA Rules Compound Effects of Coerced Evidence Provisions

At a press conference in February 2008, Brig. Gen. Hartmann claimed the "processes that we have before the military commissions in many ways parallel the military justice system," and "[w]e are going to give [the detainees] rights that are virtually identical to the rights we provide our military members."[47] This is simply not the case. Not only are the lines between torture and CID blurred under the MCA, but three additional provisions in the MCA deprive suspects of basic rights present in the civilian and military justice systems. These provisions render the threshold test of reliability almost meaningless.

First, in a departure from long-standing principles of due process, the MCA expressly permits the admission of second-hand or hearsay evidence, and places the burden on the defendant to prove that evidence is unreliable or lacking in probative value.[48] This Catch-22 makes it impossible for the defendant to confront and cross-examine the original source of the evidence, which is often the only effective way to demonstrate unreliability.

Second, under certain circumstances, the MCA permits the government to withhold from discovery the classified sources, methods and activities by which evidence was obtained.[49]

Third, no corroboration is required for admission of coerced statements under the military commission rules.[50] Whether or not a military commission may convict based on uncorroborated statements alone remains an open question. Corroboration of even non-coerced confessions is required during courts-martial and in civilian courts.[51]

Ultimately, a number of scenarios could lead to convictions – and even executions – based on coerced evidence.

First, a military judge could permit the introduction of a detainee's coerced statements without requiring corroborating evidence or disclosure of the specific interrogation methods used on the detainee. The prosecutor could assert that the interrogation methods are classified and refuse to provide access to the interrogators or to interrogation transcripts or notes.

Second, the prosecution could introduce incriminating hearsay statements (or summaries of those statements) that, unbeknownst to the defendant or his counsel, were obtained from a third-party witness through coercion. The prosecution could assert that the witness's identity and the interrogation methods used on the witness are classified and refuse to provide interrogation transcripts or notes, or access to the witnesses for examination. In some cases, it may be relatively simple to ascertain the sources of the information because the treatment of some detainees has been revealed publicly by government sources. But, in other instances, defendants could be denied access to less notorious witnesses, whom the government keeps behind a curtain of classification, making it impossible for detainees to establish that information was obtained through coercion, let alone that the information is unreliable. Even military judges might be denied access to information necessary to determine whether particular statements were coerced, and to assess their reliability.

Third, the prosecution could withhold important exculpatory evidence from the accused by asserting that the evidence is classified, thus denying the defendant an adequate opportunity to mount a proper defense.