Boy is there ever a lot there, and maybe not what it seems. And therefore a discussion about context and ambiguity.
Some legal experts critical of the Justice Department interpretation said the department seemed to be arguing that the prospect of thwarting a terror attack could be used to justify interrogation methods that would otherwise be illegal.
“What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense,” said Scott L. Silliman, who teaches national security law at Duke University.
But a senior Justice Department official strongly challenged this interpretation on Friday, saying that the purpose of the interrogation would be just one among many factors weighed in determining whether a specific procedure could be used.
“I certainly don’t want to suggest that if there’s a good purpose you can head off and humiliate and degrade someone,” said the official, speaking on the condition of anonymity because he was describing some legal judgments that remain classified.
“The fact that you are doing something for a legitimate security purpose would be relevant, but there are things that a reasonable observer would deem to be outrageous,” he said.
At the same time, the official said, “there are certainly things that can be insulting that would not raise to the level of an outrage on personal dignity.”
The humiliating and degrading treatment of prisoners is prohibited by Common Article 3 of the Geneva Conventions.
The legal reasoning included in the latest Justice Department letters is less expansive than what department lawyers offered as recently as 2005 in defending the use of aggressive techniques. But they show that the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules.
What is never challenged
There are a few assumptions that are never brought into the discussion that are therefore never challenged. The first is the assumption that what is acceptable and what "shocks the conscience" shall be determined by those in a relatively sterile environment. It is the fallacy of the existence of objective observers in matters related to cognitive processes. What is always missing is the context. When Donald Rumsfeld wrote on the memo, "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?" the answer should have been context. There is a lot of difference between standing bolted to the floor in a small cell at Bagram, or at Abu Ghraib, or at Guantanamo, and standing at a desk doing one's day job at the Pentagon. And that isn't just an opinion. When one does not know what is going to happen, when one fears one is going to be killed, when one is asked questions for which one does not know the answer but must answer anyway due to threats, when one feels there is no way out, the fight or flight system, the sympathetic nervous system, is activated. Increases in epinephrine and nor-epinephrine (adrenalin) cause your brain to activate different links between the hippocampus and the amygdala. These can enhance or detract from memory, but generally enhance threat related perceptions. Added focus on the present, and the necessity of maintaining readiness, as well as the survival mechanisms that insist that any survived danger needs to be remembered in detail lest it be needed again, create a scenario in which seemingly innocuous acts are very threatening, seemingly irrelevant details are remembered in fear forever, and bring with them all the consequences of critical incident stress -- the possibly lifelong consequences that include depression and PTSD.
If the difference between Secretary Rumsfeld standing at his desk and a prisoner standing chained to the floor are so great, what about comparisons between prisoner treatment and the SERE program? One of the defenses that has been advanced on techniques like waterboarding, for example, is that many U.S. servicemen and women go through the SERE program, and therefore experience treatments sometimes including waterboarding, and they neither drown nor experience lifelong psychological damage. But these people know they are in a training exercise, and know it will be ending, and know that no one is trying to kill them. By contrast, a prisoner at any of the military prisons listed above, or especially at a CIA Black Site, knows very surely that they are not engaging in a training exercise. They do not know that no one is trying to kill them, either. Not with over 100 deaths in the interrogation and detainment programs.
As hard as it may be to believe, the mere fact that one may not get out of the situation can alter even something very much akin to a training program. In the Stanford Prison Experiment, one of the prisoners met with the administrators of the experiment, and erroneously came back with the impression that there was no way out, that one could not break the contract, that one could not get out of the 'prison'. This led to both the derangement of that prisoner and to effects on the others once he had communicated what he believed he had learned to them (Zimbardo, The Lucifer Effect, pp. 70 ff.) . When the Torture Council principals met and discussed the combination of techniques in the Situation Room, among the concerns was that a combination of techniques could rise to the level of torture when each single technique did not. But the context was never, that I can tell, figured in, and continues not to be, except when it is explicitly part of the technique -- making a prisoner believe he has been transported to a particularly brutal country, for instance.
Nor is an interrogator immune to context. The guards in the Stanford experiment, as well as the experimenters themselves, because they played the roles of superintendents and wardens, were adversely affected and became brutal. The effect is well known and striking at Abu Ghraib. In the 1970's, a movie called Titicut Follies, about the state correctional facility for the criminally insane at Bridgewater, Massachusetts, showed footage in which guards brutalized and degraded inmates. The inmates were also aware that the way out of the facility was to be buried at the facility graveyard. The scandal that ensued, including that Bridgewater and rumors of Bridgewater had been used at Boston's Charles Street Jail as a threat to control inmates, resulted in what imdb notes as the film being the American film banned for reasons other than obscenity or national security. The effects of just having such an environment could change the behavior of those at Charles Street, and the effects on the guards and the warden of the surrealistic environment at Bridgewater are more than evident throughout the film. At Abu Ghraib, interrogator Tony Lagouranis recalls feeling, "morally isolated, that you felt like you could do whatever you want to this guy, and maybe you even want to."
If it is that context dependent for the guards and interrogators, why so little attention paid to the context for the prisoners? Is it that what isn't torture at the Pentagon must be seen to not be torture at Bagram? Is it that context matters when a lawyer is arguing on behalf of the CIA that there must be a sliding scale for the interrogators, but that the sliding scale involving the dumping of adrenalin into brain interactions and the psychological damage that results is not one of those rights given to "alien illegal enemy combatants"?
Those Ambiguous Geneva Conventions
Ambiguity seems to be a word that is linked by everyone to the Geneva Conventions these days. Journalists now mention it without being prompted: Mark Mazzetti mentions the vague language in the context of CIA lawyers attempting to find justification in the conventions for their interrogation programs. When the MCA of 2006 was passed, the justification for the notorious Section 6, which gives the President such unilateral authority over the official interpretation of Geneva, was that it was necessary to tighten up the language of Common Article 3 in order to prevent detainee abuse and torture.
Even before that, the brilliant Frontline piece, Questioning Torture, says, "The Fourth Convention's guidelines are less specific than the Third's..." and,
But American soldiers were not as well versed in the Fourth Geneva Convention as they were with the Third. Furthermore, the rhetoric coming from Washington was that Iraq was another front in America's "war on terror," implying Iraq's insurgents were "unlawful combatants" just like the detainees at Guantanamo whom President Bush had declared outside Geneva's protections.
The MCA of 2006 grants the President the official opinion on the matter, but requires that the President publish that opinion in the Federal Register. Consequently, there is an executive order published, 13440, that lays out adherence to the Geneva Conventions, supposedly, for the CIA (the military now follows the Army manual which follows the U.S. Military Code of Justice).
For 50 years, the Geneva Conventions were neither vague nor ambiguous. Common Article 3, the focus of both Administration and media attention, forbids,
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;This has always, previously, been taken to mean that you couldn't degrade a prisoner at all, and that you could not abuse a prisoner, nor coerce answers during interrogation. Interrogator Roger Brokaw, in the Frontline piece, asserts that the major part of interrogation training, when he took it (15 years previous to interview) was complying with the Geneva Conventions. The ambiguity was introduced by the commanding officers at Gitmo, either arguing that certain types of physical treatment weren't covered by Geneva, or that the prisoners weren't entitled to Geneva protections. And all we hear about is the Third Geneva convention, we hear constantly from some quarters about these people weren't wearing uniforms, and so forth, and then the fixation, after Hamdan v. Rumsfeld, with Common Article 3.
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
The truth is, most, perhaps nearly all of the prisoners in U.S. custody have rights under the Fourth Geneva Convention (on civilians), and not the Third (on prisoners of war). A curious consequence of that is that uniforms are irrelevant for civilians, and all theaters in which the U.S. is engaged are High Contracting Parties to the Fourth Convention of 1949. It includes Common Article 3, to be sure, that's why it's called "Common". But like the Third Convention before this mess began, it is also far from vague. Here are a few excerpts. Keep in mind that the Military Commissions have yet to hold their first trial, and that the Combatant Status Revue Tribunals have not processed any where near the 14,000 prisoners in Iraq or 13,000 in Afghanistan:
Art. 31. No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties.
Art. 32. The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.
Art. 33. No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.
Art. 43. Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.
Art. 49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
Art. 147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
The common perception, common in our media, common in our discussions, common in the statements of our government, is that all the people incarcerated and interrogated by our government are terrorists, begrudgingly entitled only to the protections of Common Article 3. The common perception, common in our media, common in our discussions, common in statements of our government, is that interrogation to the level of torture would only be practiced when there was a ticking nuclear time bomb in Los Angeles and only the person being questioned could tell us what we needed to know to keep 100,000 people from dying. In that Frontline series of interviews, both Lagouranis and Brokaw asserted that very few of the prisoners interrogated knew anything. That also comes across in the official investigations.
So what if the common perception is wrong? What if the real scenario is: There might be a bomb, it will be ticking someday, but not now, someone among these 27,000 prisoners knows something about it, 98% of them have never engaged in terrorism, almost all of them are protected by the Geneva Conventions, and the techniques you use will be amplified 10-fold in psychological effect by the fact that they believe they will die here.
Has context sharpened things?
Are those conventions ambiguous or do they draw a very bright line?