Ambiguity (Part II)

by Katherine

(6th in a series. Previous posts: 1, 2, 3, 4, 5)

While I’m on the subject of the need for clear guidance for interrogators, I  wanted to point out: As far as the military goes, the McCain Amendment, Hamdan, and Field Manual 34-52 are absolute miracles of clarity compared to the standard they replaced.

On February 7, 2002, President Bush officially signed an order concluding that the Geneva Conventions did not apply at all to al Qaeda prisoners, and did not provide any meaningful protection to Taliban prisoners. The order did require that "detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."

In 2005, Deputy White House Counsel Timothy Flanigan was nominated to be Deputy Attorney General. During his confirmation hearings in September, Senator Richard Durbin of Illinois tried at length to get him to explain exactly what the requirement that prisoners be treated "humanely" meant.

In his first set of written questions Durbin asked Flanigan, "how do you define inhumane treatment?" Flanigan replied:

Any questions that may arise regarding whether particular treatment complies with that directive should be resolved by reference to the customary laws of war based upon a careful review of all the relevant facts and circumstances. Because the determination of whether particular treatment is inhumane is fact-specific, I do not believe that the term "inhumane" treatment is susceptible to a succinct definition.

Durbin tried asking about specific techniques:

a. In your personal opinion, is it legally permissible for U.S. personnel to subject a detainee to waterboarding (simulated drowning)? Is it inhumane?

b.  In your personal opinion, is it legally permissible for U.S. personnel to subject a detainee to mock execution? Is it inhumane?

c.  In your personal opinion, is it legally permissible for U.S. personnel to physically beat a detainee? Is it humane?

d.  In your personal opinion, is it legally permissible for U.S. personnel to force a detainee into a painful stress position for a prolonged time period? Is it inhumane?

He got exact the same answer:

With respect to your question about whether these techniques are "inhumane," "inhumane" treatment is not susceptible to a succinct definition. It is informed by the customary laws of war and depends on all of the relevant facts and circumstances.

Not satisfied with this, Durbin submitted a second set of written questions:

I have difficulty imagining facts and circumstances in which it would be legal or humane to subject a detainee to waterboarding, mock execution, physical beatings, or painful stress positions for a prolonged time period. Can you suggest any facts and circumstances in which treating a detainee in this fashion would be legal and humane?

Flanigan responded:

As I have previously stated, my role as Deputy Counsel to the President was not to evaluate particular interrogation methods, and I have not done so. Whether a particular interrogation method, such as those you mention, would be lawful would depend on the fact facts and circumstances surrounding its use….I am not in a position to discuss the application of those or other legal standards in the abstract to hypothetical conduct without more specificity. For all of these reasons, it would be inappropriate for me to speculate about whether such techniques are lawful or humane.

Durbin asked Flanigan whether, to his knowledge, the White House had "provided any guidance regarding the meaning of humane treatment."  Flanigan answered that "I am not aware of any guidance provided by the White House specifically related to the meaning of humane treatment."

Durbin asked how the military could "comply with the President’s directive if inhumane treatment is not susceptible to a succinct definition". Flanigan gave this reassuring response:

To say that the term "inhumane" treatment is not susceptible to a succinct definition is not to say that the term lacks meaning or that the Department of Defense cannot provide service men and women with appropriate guidance in the context of specific facts and circumstances.

By the time of Flanigan’s confirmation hearings the administration had evaluated what “inhumane” meant “in the context of specific facts and circumstances,” in an investigation into allegations of prisoner abuse at Guantanamo.  The Executive Summary of the Schmidt-Furlow Report, which described the results of that investigation, discussed the following incidents (this list is not exhaustive):

"In March 2003, a female interrogator told a detainee that red ink on her hand was menstrual blood and then wiped her hand on the detainee’s arm."

"The MP…placed a single strand of duct tape around the detainee’s mouth. The single strand proved ineffective because the detainee was soon yelling again. This time the MPs wrapped a single strand of duct tape around the mouth and head of the detainee. The detainee removed the duct tape again. Fed up and concerned that the detainee’s yelling might cause a riot in the interrogation trailer, the ICE Chief ordered the MPs to wrap the duct tape twice around the head and mouth and three times under the chin and around the top of the detainee’s head."

"the creative, aggressive, and persistent interrogation of the subject of the first Special Interrogation plan resulted in the cumulative effect being degrading abusive treatment. Particularly troubling is the combined effect of the 160 days of segregation from other detainees, [and] 48 of 54 consecutive days of 18 to 20-hour interrogations…Requiring the subject of the first Special Interrogation Plan to be led around by a leash tied to his chains, placing a thong on his head, wearing a bra, insulting his mother and sister, being forced to stand naked in front of a female interrogator for five minutes, and using strip searches as an interrogation technique the [investigation] found to be abusive and degrading."

[N.B.: The subject of the first special interrogation plan is Mohamed al Qahtani, whose interrogation logs have been excerpted and summarized in Time Magazine. In addition to the incidents described in the Schmidt report, the logs describe, among other incidents, al Qahtani being forcibly given 3 ½ bags of IV fluid and refused the use of a bathroom until he urinates on himself, and having his pulse slow to 35 beats a minute as a result of dehydration (and perhaps also sleep deprivation, but I’m not sure). Time also reported that a letter from an FBI agent described Qahtani as “evidencing behavior consistent with extreme psychological trauma (talking to non existent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end)."—and as Joseph Margulies has pointed out, this was before the 48 days of 20-hour interrogations even began.]

Continuing with the Schmidt-Furlow report:

"On 2 Aug 03, the Special Team Chief…told the subject of the second special interrogation that he had a letter indicating that the subject of the second special interrogation’s family had been captured by the United States and that they were in danger….the subject of the interrogation had a messenger that day there to ‘deliver a message to him.’ The MFR goes on to state:

The message was simple: Interrogator’s colleagues are sick of hearing the same lies over and over and are seriously considering washing their hands of him. Once they do so, he will disappear and never be heard from again. Interrogator assured detainee again to use his imagination to think of the worst possible scenario he could end up in. He told detainee that beatings and physical pain are not the worst thing in the world. After all, after being beaten for a while, humans tend to disconnect the mind from the body and make it through. But until then, he will very soon disappear down a very dark hole. His very existence will become erased. His electronic files will be deleted from the computer, his paper files will be packed up and filed away, and his existence will be forgotten by all. No one will know what happened to him and, eventually, no one will care."

Despite all of these incidents, and several others I am not listing, the Schmidt-Furlow report concludes that the investigation found "no evidence of torture or inhumane treatment at JTF-GTMO."  It does recommend that the administration consider actually defining "humane treatment", but I cannot find any evidence that this ever occurred.

The Deputy White House Counsel could not say whether or not waterboarding, mock executions, beating, or extended, painful stress positions were "inhumane." A General found that "abusive and degrading treatment" could still be "humane." The administration apparently never explained what the term meant.  Given all this, it isn't surprising that troops on the ground had no idea how to interpret it. Captain Ian Fishback told Human Rights Watch:

[In Afghanistan,] I thought that the chain on command all the way up to the National Command Authority had made it a policy that we were going to interrogate these guys harshly. 

[The actual standard was] “we’re not going to follow the Geneva Conventions but we are going to treat you humanely.”  Well, what does humane mean?  To me humane means I can kind of play with your mind, but I cannot hit you or do anything that is going to cost you permanent physical damage. To [another officer I spoke with] humane means it’s okay to rough someone up and to do physical harm.  Not to break bones or anything like that but to do physical harm as long as you’re not humiliating him, which was the way he put it.   We’ve got people with different views of what humane means and there’s no Army statement that says this is the standard for humane treatment for prisoners to Army officers.  Army officers are left to come up with their own definition of humane treatment....

the President makes that decision, and decides that we’re not going to cover them by the Geneva Conventions, which according to the letter of the law, I think there’s a strong argument for that…. [But] then that lack of standard migrates throughout the Army. It filters throughout the Army, so that now the standard, this convoluted, “You’ll know what’s right when you see it,” filters through the whole Army.

If you draw a hard line and you say “Don’t do anything bad to prisoners,” like you bring them in, you give them food, you give them water, and then you leave them alone. If that happens then, yeah, that is an easy line to draw, but when you start drawing shades of gray and you start stripping prisoners, or you start making prisoners do humiliating things and then you tell a soldier to draw the line somewhere, then no.  A soldier is not going to be able to draw that line because as soon as you cross that line and as soon as you start stripping prisoners or you start making people do vigorous exercise, or you start basically putting yourself in a position of authority where you are subjecting someone else to harsh treatment, things are going to get out of hand because everyone is going to draw the line at a different place. Just like the discussion between me and the other officer, where’s the line? What is acceptable and what is not acceptable?  People don’t know.  The West Point officers knew the line coming out of West Point.  We knew where the Geneva Conventions drew the line, but then you get that confusion when the Sec Def [Secretary of Defense] and the President make that statement.  And we were confused. 

Compared to this mess, the Army Field Manual and Common Article 3 could hardly be clearer.

[edited to fix typos and add Fishback's account].

Comments

[Anderson]

All under the flag of the United States of America.

I think I had better not check this thread again, because someone will defend the treatment described above, and I will get banned from ObWi a few minutes later.

[bob mcmanus]

Well, I will defend the lawyers. Is shooting someone in the head murder? It depends.

Were all Gore's phone calls, or Delay's fund-raising, or any number of other examples "crimes"? We usually, in public spaces, leave those decisions and resolution of ambiguity to a prosecutor and jury.

Was it Balkin or Lederman who said everyone(tortures and bureaucrats) was likely to get off on due process, "following orders" claims. I presume if officially said before anyone gets charged or the activities stopped, that "waterboarding was inhumane", that defense would not be available, and the illegal order would need to be reported.

I guess it all remains very ugly, and lawyers probably should not act this way.

[Harald Korneliussen]

"Is shooting someone in the head murder? It depends."
Is waterboarding torture? It does not depend.

[trilobite]

I wish Congress would start using its authority to jail or fine people for contempt again. These non-answer answers are way out of hand, and contemptuous by both lay and legal definitions.

[Katherine]

I should probably mention, Flanigan wasn't confirmed.