(Part 1) Torture without torturers: On the rise and fall of the US political definition of torture as it pertains to US domestic criminal accountability for US official torture

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By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law, Advocates for US Torture Prosecutions

This is my most recent first cut at trying to make sense of all that I have read and seen over the past ten years working for criminal prosecution in US domestic courts of senior officials and military leaders for torture.  It is about understanding a path to where we are today and for seeing the path going forward.  It will be in more than one part.

I. The putting in place of the Political Definition of Torture

A. Principle No. 1: Torture is murder only

On December 14, 2014, on Meet the Press former Vice President Dick Cheney gave his definition of torture as what happened to those people burned alive in the Twin Towers and Flight 93 on 9/11.  He went on to describe those events that day as murder.  Following the logic of his statements, for him, torture is murder.   That is his definition as a politician of torture or what might be called a political definition of torture.

This statement reminded me of language in the UNITED STATES SENATE ARMED SERVICES COMMITTEE, INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY 94-97 (2008), available at http://www.armed-services.senate.gov/imo/media/doc/Detainee-Report-Final_April-22-2009.pdf [hereinafter SENATE ARMED SERVICES COMMITTEE REPORT].  In that Senate Armed Service Committee Report, at pages 54-55 they quote CIA lawyer Jonathan Fredman in an October 2, 2002 meeting at Guantánamo Bay Military Base, Cuba.  In that quote, Jonathan Fredman defined torture as “…it is basically subject to perception. If the detainee dies you’re doing it wrong.”

That statement was made after the August 1, 2002 Bybee-Yoo Memo, which defined torture as

“Acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical.  Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention.  We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture.  Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.  For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g. lasting for months or even years.”

The operative logic of their interpretation of that August 1, 2002 OLC memo as expressed by Jonathan Fredman October 2, 2002 and by former President Dick Cheney on December 14, 2014 is that torture occurs only when someone is murdered.

Prior to the OLC memo being drafted and in the period from September 11, 2001 up to the August 1, 2002 people were captured and interrogated.  Given the emphasis today by those defending the torture program on the context post-9/11 and its influence on the American state actors, we can understand that from September 11, 2001 to the August 1, 2002 memo, the political definition of torture applicable was that it was only torture if you murdered the person detained.  Thus, the August 1, 2002 memo is best seen as legal cover for the application of the “torture is murder” definition of torture throughout the relevant period.

B. Principle No. 2: Anything less than torture is murder may be cruel inhuman and degrading treatment but the US has not international obligations because our UN CAT obligation does not reach that behavior abroad

Everything less than TORTURE IS ONLY MURDER would be defined as possibly cruel, inhuman and/or degrading treatment.  Because of the US reservation to the UN Convention Against Torture limiting the US obligation to our Constitutional standards, it was vital that those Constitutional standards not be seen to apply outside of the United States.  Thus, the OLC interpretation was put in place in this same 2001-2 period that the US obligation with respect to cruel, inhuman and/or degrading treatment was limited to US territory and did not apply extraterritorially to non-citizens held abroad.

C. Principle No. 1 read with Principle No. 2

The combination of this political definition of torture (Principle No. 1) with the assertion of the non-extraterritorial applicability to non-citizens held abroad of the UN Convention Against Torture prohibition on cruel, inhuman and/or degrading treatment (Principle No. 2) was the legal floor for the use of Enhanced Interrogation Techniques

Under that definition, short of killing a detainee, any treatment such as that described in  the Senate Torture Report was considered legal and – according to former Vice President Dick Cheney – is considered legal.

The Geneva Conventions create another source of law that might impinge on this definition so they were simply read not to apply in the conflict.

The result is that the political definition of torture was made the legal definition of torture.  That political definition of torture was made to apply for intelligence, the military, and any other place where persons were detained outside the United States who were non-citizens.  It may have also been applied to Jose Padilla – a US citizen.

D. The political definition of torture as not law but as power

This political definition of torture was not law at the time but the authorized interpretation of the law under the OLC memos and other verbal advice given before and after the torture memos.  As we have learned in the Senate Torture Report, these memos were based on false narratives as to the facts and profoundly flawed legal analysis.  As we have also learned, as noted in the Senate Torture Report, CIA operatives objected to the techniques being used.  As noted in the Senate Armed Services Committee Report, lawyers in State (William Taft IV as Legal Adviser and Phillip Zelikow as counsel to the Secretary of State and the Department of Defense (the four uniformed Top JAG officers and Alberto Mora as General Counsel of the Navy) objected to this legal structure that was being carefully put in place.  Those who objected were overruled – an act of discretionary power.

II. Torture without torturers – the structuring of political definition non- torture

A. Compartmentalization of an overall worldwide program

With this common standard in place, applicable across the entire government, it was applied in the military, intelligence, and other sites.  Most likely it was provided to foreign governments who helped us in the worldwide torture program and served as the basis for the United States assurance that the persons held in black sites were being treated humanely.  Moreover, when a foreign government gave assurances to the United States that they were going to treat someone rendered to them humanely, it seems logical that the above definition of torture was the United States political definition to which these diplomatic assurances would be responding.

To limit the understanding  of any individual who was not at the center of this torture regime, it was necessary to compartmentalize information on a need to know basis.  Thus, whether someone was detained in the intelligence part of this, in the military part, or in the law enforcement part had to be carefully determined.  Those persons in each of those parts of the torture structure would have limited knowledge at the operator level.  They were on a short leash in the sense that they had to report back to Headquarters about what they did.  Inevitably, at the CIA at least, whenever the operators wanted to stop, the Senate Torture Report says they were ordered to continue.  One can understand that this same logic would have played out in the military and law enforcement detention – as long as it was overseas – as well as in the detention by foreign governments.

Only someone close to the top of this hierarchy would fully understand the dimensions of the torture program and what was going on.  Former Vice President Dick Cheney had a significant national security portfolio and he has made it clear that he was weighing (I understand a significant part of that as being the putting into place of the political definition of torture that he truly believes) on all those below to comply with his approach to seeking actionable intelligence.

B. Dis-Aggregation and Aggregation of Techniques

If torture is only murder is your definition of torture, then the combination of any set of actions on a specific detainee that were less than murder was fair game.  Thus we have the combination of rendition, detention, medical, and interrogation acts done to a given detainee.  For example, the rendition of someone in a drugged and sensory-deprived manner, detention rules that called for waking up someone, rectal feeding as being considered a means of rehydration overseen by medical personnel, and the interrogation techniques actually used become four different aspects of detainee treatment with no-one individual person at the operator level having the competence to do all aspects of the treatment of the detainee.  This disaggregation by narrow task definition for personnel assures that no one of the personnel could be seen to have done an act that would result in murder – the definition of torture.  Each of these acts would have some kind of rationale – maintaining security in travel or when holding a person, providing medical “care,” or seeking actionable intelligence.

The operator in the room is only there for a period of time, so no one operator – whatever his/her role – would have an understanding of the totality of what was being done to a detainee unless meticulous records were both kept and systematically reviewed.  In addition, those meticulous records would have to not be compartmentalized into retention, detention, medical, and interrogation for any given operator to have an inkling of what the overall program was doing to a given detainee.

When one looks at the disaggregated narrow task definition from the point of view of the detainee, the whole panoply of actions done to them amount to the treatment.  If the sum of all these parts does not amount to murder, then under the definition of torture as murder there is no crime.  Under this vision, there is treatment that is not abuse by persons who did nothing wrong.

It permits a situation of abuse without abusers.

More importantly, when one looks at the panoply of actions done to the detainee at the level above the individual operator where the authority to supervise was present, there comes a point in which one is sufficiently superior in level to see the dimensions of what is being done to the given person under the different tracks of treatment activity.  I would suspect that the highest minimum level for that kind of knowledge (meaning the lowest level at which one would suspect a government official would be able to put together the rendition, detention, medical and interrogation actions done on any given detainee) would be the level of the head of the Counterterrorism Center at the CIA – the level of Jose Rodriguez.  If we follow the de jure chain of command, I would also think that those in the Director and Deputy Director roles of the CIA above the Counterterrorism Center would also have such knowledge.  In the Department of Defense the highest minimum level would be about the same – I imagine that Stephen Cambone was at that level.  On the legal side, given the memo writing, the Office of Legal Counsel was the highest minimum level at which knowledge of the different strands of treatment would be known going up to the Attorney General and the Deputy Attorney Generals.  Similar levels would be the levels of their counterparts in the General Counsels offices of State, Department of Defense, CIA and other Intelligence Services, Department of Homeland Security or others.  The line does not have to be the same in each part of the government because the nature of the intervention of actors from each part may be different.  Thus, a discrete intervention by the Bureau of Prisons might entail (if it then existed) the Secretary of the Department of Homeland Security, the General Counsel, and the head of the Bureau of Prisons authorizing such an intervention, without any other parts of the Department being involved.  Similarly, at the White House, the National Security Staff would be the highest minimum level in the know.

C. Legal Process

Given the above structure of treatment, if a detainee were to be prosecuted, the military commission structure had to be put in place to ensure a sufficiently high procedural and substantive tolerance for the product of these processes to be admissible  – first by the Presidential Military Order, and subsequently in the Military Commission Act of 2006 and the Military Commission Act of 2009.  If the torture is only murder definition could be maintained as the operative definition of what was inadmissible, every product of the above treatment was admissible.

III. The demise of the political definition of torture –

A. The rise of a legal definition of torture: something more than only murder and the applicability some places abroad of the cruel, inhuman, and/or degrading treatment rule

The political definition of torture as only murder was not able to be sustained in the onslaught of litigation in the United States courts.  In light of Rasul (2004), Hamdan (2006) and Boumediene (2008), the political definition of torture was confronted with statutory and then Constitutional habeas rights and – with Hamdan – the minimum Geneva Convention Common Article 3 standard.  More significantly, with the pictures from Abu Ghraib, the Uniform Code of Military Justice standard was applied to the low-level soldiers who undertook acts when the political definition of torture as murder applied and they were court-martialed or disciplined as their actions were incompatible with their domestic legal obligations as uniformed soldiers.

The revelation of the torture memos and their political definition of torture as only murder began to be confronted by the rule of law. The political definition of torture in the OLC memos was ridiculed for adopting an “absurdly narrow” legal definition of torture, described by the former Dean of Yale Law School Professor Harold Koh as “so narrow that it would have exculpated Saddam Hussein.” (see Advocates for US Torture Prosecutions Shadow Report to the UN Committee Against Torture page 5).

The use of combinations of techniques immediately, detailed in the Senate Torture Report, also raised the specter of sanctioned interrogation techniques being improperly used under the guidance.  Their use considered proper during the period of the political definition of torture as only murder was no longer proper.  Once there was a step back from the torture is only murder definition their use could be recognized as being something like torture as including something more than murder.

With the repudiation of the non-extraterritoriality argument on cruel, inhuman and/or degrading treatment in the Convention Against Torture through the Detainee Treatment Act of 2005 as a matter of internal law,  the window for the torture as only murder political definition of torture was prospectively limited.

However, as a matter of international law, with the statement of Abraham Sofaer who negotiated and submitted to Congress the Convention Against Torture when the US signed it in the Reagan Administration in 1988 and the Statement of the US delegation to the UN Committee Against Torture in November 2014 reaffirming the applicability to the United States of the cruel, inhuman and/or degrading treatment portion of the UN Convention Against Torture to United States operations outside the United States, the Bush Administration legal analysis was somewhat revealed as an aberrant domestic interpretation of the US international law obligation.  Given the basic rule of international law that no state can use its internal law to extract itself from its international obligations, the Bush Administration interpretation was shown up as a blatant attempt to extract the US from its international obligations through the effort to enshrine the torture is only murder political definition of torture and non-extraterritorial applicability of the cruel, inhuman and/or degrading treatment CAT treaty rules.  In a sense, state culpability was more clearly revealed.  Now, it is true that the Obama Administration statement leaves areas of cloudiness as to just where the cruel, inhuman, and/or degrading treatment international obligation applies other than on US ships, Guantanamo Bay, or US bases overseas (a political compromise across the interagency to maybe provide a fig leaf to those who operated under the torture as only murder and non-extraterritorial applicability of the cruel, inhuman, or degrading treatment rule of the CAT).  Yet, it is a significant step back from the torture as only murder standard in a move toward the torture is something more than murder standard and the cruel, inhuman, and/or degrading treatment is prohibited rule.

B. How to address acts since 2001 under the political definition of torture as only murder and non-applicability of cruel, inhuman and/or degrading treatment with the legal definition of torture as something more than murder and the applicability in some cases of the cruel, inhuman or degrading treatment rule

(More to come)