[NYTr] Annotated Response to new CIA Exec Order on Torture

[nytr at olm.blythe-systems.com]

sent by MichaelP (activ-l)

OpEd News - Jul 22, 2007
http://www.opednews.com/articles/opedne_stephen__070722__22enhanced_22_interroga.htm

"Enhanced" Interrogation Techniques: The Risk of Criminality

by Stephen Soldz
http://soldzresearch.com/stephensoldz

In response to Friday's Executive Order authorizing the CIA to resume 
abusdive interrogations of "enemy combatants" in its custody, two of
the NGOs leading the fight against torture have released a summary of
their forthcoming report on the CIA's "enhanced techniques." [For an
Analysis of the Executive Order, see Marty Lederman at Balkinization.]

For anyone thinking that the new CIA program will be substantially 
different than the old one -- described in detail online by Vanity Fair 
last week -- nearly universally condemned as torture, this quote from
an Administration official is not comforting:

"CIA detainees have also alleged they were left naked in cells for 
prolonged periods, subjected to sensory and sleep deprivation and
extreme heat and cold, and sexually taunted.  A senior administration
officials briefing reporters yesterday said that any future use of
'extremes of heat and cold' would be subject to a 'reasonable
interpretation . . . we're not talking about forcibly induced
hypothermia.' "

The report:

Summary of Forthcoming Report on "Enhanced" Interrogation Techniques:
The Risk of Criminality by Physicians for Human Rights and Human Rights
First

July 2007

All U.S.  personnel who engage in the CIA's so-called "enhanced" 
interrogation techniques and similarly abusive techniques are at
serious risk of violating U.S. law. Under U.S. law, as detailed below,
the severity of physical pain or mental harm caused by an interrogation 
technique is key to determining whether the technique can be considered 
torture or cruel, inhuman or degrading treatment. An extensive body of 
medical literature, derived from the treatment and study of torture 
survivors worldwide, demonstrates that the "enhanced"  techniques are 
likely to cause significant physical and mental harm to detainees. As a 
result, officials and interrogators who authorize and participate in 
interrogations using these techniques face a substantial risk of
criminal prosecution under the provisions prohibiting "torture"  and
"cruel and inhuman treatment"  in the U.S.  War Crimes Act (WCA), as
amended by the Military Commissions Act of 2006 (MCA),i and under the
U.S. Torture Act of 2000.ii Many of these interrogation techniques may
also be prohibited by the Detainee Treatment Act of 2005 (DTA).iii To
protect U.S.  officials and personnel from potential criminal liability
and to ensure that all U.S. personnel adhere to U.S. law, these
techniques should not be authorized.

THE CIA ENHANCED INTERROGATION METHODS

While the details of, and regulations governing, the CIA's "enhanced" 
interrogation program remain classified, credible reports have
disclosed several of these techniques, including waterboarding (mock
drowning), exposure to extreme cold (including induced hypothermia),
stress positions, extreme sensory deprivation and overload, shaking,
striking, prolonged sleep deprivation, and isolation, among others.iv
Without identifying these and other specifically approved techniques,
the President has publicly endorsed "alternative interrogation
methods," declaring that the MCA, which he signed into law in October
2006, allows the CIA "program"  to continue.v Yet a closer examination
of the MCA and other U.S.  law, informed by medical and psychological
knowledge, reveals that authorization of these enhanced interrogation
techniques, whether practiced alone or in combination, may constitute
torture and/or cruel and inhuman treatment and, consequently, place
interrogators at serious legal risk of prosecution for war crimes or
other violations.

A recently declassified report by the Pentagon's Office of the
Inspector General (OIG)  has revealed that these techniques were based
in large part on techniques of torture used by the U.S military in its
Survival, Evasion, Resistance, and Escape (SERE) program intended to
train personnel to resist such abuse.vi According to the OIG, these
techniques were transformed, with the assistance of military
psychologists, into "standard operating procedure" (SOP) for
interrogations at the Guantnamo Bay detention facility. This Guantnamo
SOP, the OIG reports, also was brought to Afghanistan and Iraq and,
according to media reports, provided a basis for techniques used by CIA
personnel, also with assistance from psychologists.vii The origin of
these techniques is directly related to the focus of this report. They
were designed to inflict physical and psychological harm for the
purpose of breaking down interrogation subjects. This report describes
the nature and extent of that harm and the legal consequences.

VIOLATIONS OF THE WAR CRIMES ACT, THE TORTURE ACT AND THE DETAINEE 
TREATMENT ACT

The recent amendments to the War Crimes Act establish as war crimes
"grave breaches" of Common Article 3 of the Geneva Conventions,viii
including "torture" and "cruel and inhuman treatment."ix "Torture" is
characterized, in pertinent part, as "an act specifically intended to
inflict severe physical or mental pain or suffering."x The separate war
crime of "cruel and inhuman treatment," is defined "an act intended to
inflict severe or serious physical or mental pain or suffering."xi

For the crime of torture under the WCA xii and the Torture Act,xiii
severe mental pain or suffering is defined as "the prolonged mental
harm caused by or resulting from"  several specified actions, including
"the intentional infliction or threatened infliction of severe physical
pain or suffering"  and "the administration or application, or
threatened administration or application, of mind-altering substances
or other procedures calculated to disrupt profoundly the senses or the 
personality."xiv

For the WCA crime of "cruel and inhuman treatment," serious mental pain
or suffering is defined as "the serious and non-transitory mental harm
(which need not be prolonged) caused by or resulting from" the same
specified actions.xv

#####

The Detainee Treatment Act requires that "no person in the custody or 
under the physical control of the United States be subject to torture
or cruel, inhuman, or degrading treatment or punishment (CIDT)."xvi The
DTA defines CIDT as conduct prohibited by the 5th, 8th, or 14th
Amendments to the U.S. Constitution.

ADVERSE PHYSICAL AND MENTAL CONSEQUENCES

Medical literature clearly establishes that tactics such as the CIA's 
reported "enhanced interrogation techniques cause the types of physical 
and mental anguish that are criminalized under the WCA and other laws.
In a letter sent to Senator John McCain during the height of the MCA
debate, several leading medical and psychological experts, including
current and past presidents of the American Psychiatric Association and
the American Psychological Association, conveyed this collective
knowledge:

There must be no mistake about the brutality of the "enhanced 
interrogation methods"  reportedly used by the CIA. Prolonged sleep 
deprivation, induced hypothermia, stress positions, shaking, sensory 
deprivation and overload, and water-boarding (which may still be 
authorized), among other reported techniques, can have a devastating 
impact on the victim's physical and mental health.xvii

The pain and suffering arising from the individual and combined use of 
water-boarding, hitting, induced hypothermia, prolonged bombardment
with loud music and flashing lights, stress positions, total and
long-term isolation, and other "enhanced" interrogation techniques is
directly related to the purpose of these techniques: to "break"
detainees, mentally and physically.xviii The medical consequences of
such abuse have been well-documented through years of research and
treatment of survivors of violence and severe trauma.

Some of the enhanced techniques, particularly water-boarding, hitting, 
induced hypothermia, and stress positions are capable of causing
"severe" or "serious"  physical pain and suffering, the intentional
infliction of which violates the "torture" and "cruel and inhuman
treatment" provisions of the WCA.  Each of the techniques can also
cause significant psychological harm. According to one recent study, in
fact, the significance of the harm caused by non-physical,
psychological abuse is virtually identical to the significance of the
harm caused by physical abuse.xix

This mental harm can take many different forms, including:

o Posttraumatic stress disorder (PTSD), manifested in: prolonged, 
recurring flashbacks and nightmares;  significant impairment and 
instability in life functions;  suicidal ideation;  and, weakened
physical health, among other consequences.xx Rates of PTSD range from
45% to 92% of torture survivors, subjected to both physical and mental
torture. xxi

o Depressive disorder manifested in self-destructive and suicidal
thoughts and behavior, and other characteristics.xxii

o Psychosis, in the form of delusions, bizarre ideations and behaviors, 
perceptual distortions, and paranoia, among other manifestations.xxiii

These techniques, moreover, are generally used in combination xxiv - 
prolonged isolation, for example, combined with sleep deprivation,
light and sound bombardment, and exposure to cold - compounding their 
devastating psychological impact.

THE LEGAL RISK UNDER U.S. LAW

Given this body of medical and psychological knowledge, officials who 
authorize these techniques place themselves and those who engage in
them at enormous risk: namely, that in future trials involving the War
Crimes Act, courts will be presented with credible and compelling
evidence of harm, provided by medical and psychological experts skilled
in the documentation of physical and psychological consequences of
torture and ill-treatment, in accordance with internationally accepted
protocols.xxv It is the responsibility of the Executive Branch to
ensure that its agents abide by the law. If instead it purports to
authorize acts that violate the law, agents who carry out those acts
will be put at risk of prosecution for serious crimes.

CONCLUSION AND RECOMMENDATIONS

This report demonstrates that "enhanced" techniques of interrogation, 
whether practiced alone or in combination, may cause severe physical
and mental pain. In fact, the use of multiple techniques of "enhanced" 
interrogation virtually assures the infliction of severe physical and 
mental pain upon detainees. Given this knowledge, U.S. policy makers
and interrogation personnel should understand that if such methods are 
practiced, it would be reasonable for courts to conclude that the 
resulting harm was inflicted intentionally.  The interrogation
techniques analyzed above - and other techniques that have comparable
medical consequences - implicate legal prohibitions and could result in
felony criminal prosecutions. It is therefore inappropriate that any
such techniques be available for use by U.S.  personnel in
interrogations, and it is the responsibility of U.S. policy makers to
ensure that the use of such techniques is effectively precluded.

In issuing interrogation policy, the United States should refrain from 
repeating the mistake of allowing euphemistic descriptions of 
interrogation techniques to stretch the line between permissible and 
impermissible treatment.  Instead, all U.S.  agencies should firmly
adhere to a single bright line standard of humane treatment that
protects the lives and health of individuals in U.S. custody.

########

Recommendations to the Executive Branch

1.  Prohibit the "enhanced"  interrogation techniques, in order to
protect U.S. officials and personnel from potential criminal liability
and to ensure that all U.S. personnel adhere to U.S. law.

2.  Prohibit the use of any other method that, alone or in combination 
with other interrogation methods, will more likely than not cause 
significant physical and/or mental pain or suffering.

3.  Instruct all U.S. interrogators in effective, legal, non-harmful 
methods of interrogation.

  	i Pub. L. No. 109-366, 6(b), 120 Stat. 2600 (2006).

  	ii 18 U.S.C.  2340 (2007)  (prohibits the infliction of
"severe physical or mental pain and suffering," including "prolonged
mental harm," in terms virtually identical to the MCA's provision
prohibiting "torture.")

  	iii National Defense Authorization Act for Fiscal Year 2006,
P.L. 109-163 1403, 119 Stat. 3136 (2006).

  	iv See, e.g., Dana Priest , CIA Puts Harsh Tactics On Hold;
Memo on Methods Of Interrogation Had Wide Review, WASH. POST, June 27,
2004, available at 
http://www.washingtonpost.com/ac2/wp-dyn/A8534-2004Jun26?language=prin
ter (accessed Apr.  26, 2007).  According to the Washington Post
article, the enhanced interrogation techniques were approved by Justice
Department and National Security Council lawyers in 2002, briefed to
key congressional leaders, and required the authorization of CIA
Director George J.  Tenet for use. See also, Brian Ross & Richard
Esposito, CIA's Harsh Interrogation Techniques Described, ABC NEWS
ONLINE, Nov. 18, 2005, available at
http://abcnews.go.com/WNT/Investigation/story?id=1322866 (accessed Apr.
26, 2007).

  	v Press Release, White House, George Bush, President of the
United States, President Bush Signs Military Commissions Act of 2006,
(October 17, 2006), available at 
http://www.whitehouse.gov/news/releases/2006/10/20061017-1.html.  The 
methods and techniques reportedly used in the CIA program have also
been referred to as "enhanced interrogation methods" by anonymous
senior CIA officials. See Priest, supra note 4.

  	vi Review of DoD-Directed Investigations of Detainee Abuse 
(U)-Office of the Inspector General of the Department of Defense;
Report No. 06-INTEL-10--August 25, 2006; (Declassfied May 18th, 2007).

  	vii Benjamin Mark, The CIA Torture Teacher, Salon. June 21,
2007.

  	viii Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (holding that 
Common Article 3 applies to alleged members of Al Qaeda and the
Taliban).

  	ix Military Commissions Act of 2006,  950(j)(b)..

  	x Id. (emphasis added)

  	xi Id. (emphasis added)

  	xii Military Commissions Act of 2006, 5(b)(2)(A). ("the term 
`severe mental pain or suffering' shall be applied ... in accordance
with the meaning given that term in section 2340(2) of this title").

  	xiii 18 U.S.C.  2340.

  	xiv  18  U.S.C.    2340(2). (defining the term "severe mental
pain or suffering") (emphasis added)

  	xv Id.

  	xvi National Defense Authorization Act , 1403..

  	xvii Letter from Allen S. Keller, Program Dir., Bellevue/NYU 
Program for Survivors of Torture, Gerald P.  Koocher, President,
American Psychological Association, Burton J. Lee, Physician to the
President for George H.W.  Bush, Bradley D. Olson, Chair, Divisions for
Social Justice, American Psychological Association, Pedro Ruiz,
President of the American Psychiatric Association), Steven S.
Sharfstein, Immediate Past President, American Psychiatric Association,
Brigadier General Stephen N.  Xenakis, (Ret.  U.S.A)  and Philip G.
Zimbardo, Prof. Emeritus, Stanford & past President, American
Psychological Association, to Sen.  John McCain (Sept. 21, 2006)
available at
http://physiciansforhumanrights.org/library/news-2006-09-22.htm
(accessed Apr. 26, 2007).

  	xviii PHYSICIANS FOR HUMAN RIGHTS, BREAK THEM DOWN: THE
SYSTEMATIC USE OF PSYCHOLOGICAL TORTURE BY U.S. FORCES,48-72 (2005),
available at
http://physiciansforhumanrights.org/library/report-2005-may.html
(accessed Apr. 26, 2007) [hereinafter PHR, BREAK THEM DOWN].

  	xix Basoglu, M., et al., "Torture vs Other Cruel, Inhuman,
and Degrading Treatment," Archives of General Psychiatry, vol. 64, No.
3, March 2007, pp. 277-285.

  	xx AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND
STATISTICAL MANUAL, (Washington, DC. 4th Ed. 2000) (serves as the main
diagnostic reference of mental health professionals in the United
States of America) [hereinafter APA MANUAL]; U.N. OFFICE OF THE
COMMISSIONER FOR HUMAN RIGHTS, ISTANBUL PROTOCOL: MANUAL ON THE
EFFECTIVE INVESTIGATION AND DOCUMENTATION OF TORTURE AND OTHER CRUEL,
INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT 44 (2001). [hereinafter
ISTANBUL PROTOCOL] The UN Commission on Human Rights in April, 2000,
and the General Assembly on December, 2000, adopted resolution 55/89,
the "Principles on the effective investigation and documentation of
torture and other cruel, inhuman or degrading treatment or punishment",
commonly known as the Istanbul Protocol.  The Istanbul Protocol is
intended to provide international guidelines for the assessment of
victims who alleged torture and ill-treatment and describes the
fundamental principles of any viable investigation into incidents of
torture. The manual was the result of three years of work of more than
75 experts in law, health and human rights, representing 40
organizations or institutions from 15 countries.; Ronald C. Kessler,
Posttraumatic Stress Disorder: The Burden to the Individual and to
Society, 61 J. CLIN. PSYCHIATRY 61(suppl. 5) 4-12 (2000).

  	xxi Moisander PA & Erik Edston, Torture and its sequel--a 
comparison between victims from six countries, Forensic Science 
International. 137(2-3):133-40 (Nov. 26, 2003).

  	xxii Mollica RF. Surviving torture. New England Journal of 
Medicine. 351(1):5-7, 2004 Jul 1.

  	xxiii ISTANBUL PROTOCOL, supra note 20 at 44.

  	xxiv MAJ.  GEN.  GEORGE R. FAY, AR 15-6 INVESTIGATION OF 
INTELLIGENCE ACTIVITIES AT ABU GHRAIB, Aug.  2004, at 9-10, available
at http://www4.army.mil/ocpa/reports/ar15-6/AR15-6.pdf (accessed Apr.
26, 2007); see also PHR BREAK THEM DOWN, supra note 18, at 7.

  	xxv See generally ISTANBUL PROTOCOL, supra note 20.

[Stephen Soldz is psychoanalyst, psychologist, public health 
researcher, and faculty member at the Institute for the Study of
Violence of the Boston Graduate School of Psychoanalysis. He is a
member of Roslindale Neighbors for Peace and Justice. He maintains the
Psyche, Science, and Society blog.]