Hearing: "Is It Torture Yet?" - December 10, 2007
Thank you Mr. Chairman. I appreciate the opportunity to be here today, and I applaud the Committee for holding this hearing. This morning I hope to help bring clarity to an area where administration officials have fabricated ambiguity: U.S. law prohibiting torture and other cruel treatment.
The administration has repeatedly refused to take off the table interrogation techniques that are obviously and inherently cruel. It has established a dangerous bifurcated approach to detainee treatment standards creating an exception for the CIA to engage in interrogation methods that the military has repeatedly found to be unlawful. In July, the president issued an Executive Order that lays out an interpretation of Common Article 3 of the Geneva Conventions for the CIA that is different from the standard used by the military. Common Article 3 lays out the minimum standard of treatment for enemy prisoners.
Shortly after the issuance of the Executive Order the Director of National Intelligence Admiral Michael McConnell and former Attorney General Alberto Gonzalez publicly refused to state whether the Executive Order prohibited specific acts of cruelty for use by the intelligence community. The Judge Advocates General of U.S. Army, Navy, Air Force and Marine Corps, on the other hand, had no trouble answering unequivocally in August 2006 that the use of waterboarding, stress positions, the use of dogs, and removal of clothing in interrogation would not only be inhumane but would violate U.S. law and the law of war.
The administration’s official position of ambiguity on CIA interrogation standards became a central issue during the recent confirmation of Attorney General Michael Mukasey. Then Judge Mukasey refused to answer questions on whether waterboarding was illegal, claiming that it depended on complex legal analysis upon which he was unable to speculate. But as four retired generals and admirals said in a letter to Senator Leahy: “the relevant rule – the law – has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise – or even to give credence to such a suggestion – represents both an affront to the law and to the core values of our nation.” Yet some senators legitimized Judge Mukasey’s equivocation by calling on Congress to outlaw waterboarding. Mr. Chairman, you pointed out the absurdity of suggesting that Congress had somehow forgotten to outlaw waterboarding when you asked whether that meant we have to pass a statute that explicitly outlaws the use of the rack or thumb screws.
What Attorney General Mukasey and the administration have obscured is the fact that Congress has already outlawed torture and other acts of cruelty. The McCain Amendment, the anti-torture act, the War Crimes Act, and Common Article 3 of the Geneva Conventions establish clear standards for the treatment of all prisoners in U.S. custody. Under these laws “an act specifically intended to inflict severe physical or mental pain or suffering” is torture. “[A]n act intended to inflict severe or serious physical or mental pain or suffering” is a felony war crime of “cruel or inhumane treatment.” The Detainee Treatment Act requires that no person in the custody or physical control of the United States shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, prohibited by the Fifth, Eighth, and Fourteenth Amendments. Common Article 3 additionally prohibits "outrages upon personal dignity."
Existing statutory language, under a reasonable interpretation, prohibits the use of the so-called “enhanced” interrogation techniques that have reportedly been authorized for use by the CIA. The most detailed public account of the “enhanced” interrogation techniques was published in a November 8, 2005 ABC News report. The report, which has widely been cited as credible, described the authorization of violent “shaking,” striking prisoners, stress positions, extreme cold, sleep deprivation and waterboarding.
In June 2007, Human Rights First and Physicians for Human Rights published the first comprehensive evaluation of the nature and extent of harm likely to result from “enhanced” interrogation techniques and the legal risks faced by interrogators who employ them. As a principle co-author of the report titled Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality I can tell you our findings were clear. The recent revelation of the CIA’s destruction of videotapes of interrogations in which some of these methods were inflicted on prisoners indicates that at least some in the administration understood what we know: that these techniques are unlawful because they cause serious physical and psychological harm to the individuals against which they are used. We know that the United States has condemned the use of such cruel methods by brutal regimes in the past. The techniques are illegal and should be clearly taken off the table for all U.S. interrogators. I want to share a sample of the report findings on three of the reportedly authorized “enhanced” techniques: long time standing, sleep deprivation and waterboarding.
“Long time standing” is a painful, life-threatening stress position that has long been considered a form of torture. It is known to cause blood clots, which can travel to the lungs as potentially fatal pulmonary embolisms. If continued long enough, it can lead to nerve damage. The State Department has criticized some of the world’s most repressive states, including Burma, Iran and Libya, for employing long time standing in interrogations. The United Kingdom and Israel abandoned as illegal similar stress positions such as “wall standing” and forcing a prisoner to stand on the tips of his toes. After World War II, U.S. military commissions prosecuted Japanese troops for employing such “stress” techniques on American prisoners. The U.S. Supreme Court has condemned the “obvious cruelty” of leaving a prisoner in the sun in a standing stress position, calling it “degrading,” “dangerous” and “antithetical to human dignity.”
Sleep deprivation is a classic form of torture. It is one of the most efficient means of inflicting mental pain, and medical studies have established a relationship between sleep deprivation and psychiatric disorders such as major depression. Six decades ago the U.S. Supreme Court cited with approval an American Bar Association report that made the following observation: “It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired.” In recent years the U.S. State Department has condemned Indonesia, Iran, Jordan, Libya, Saudi Arabia, and Turkey for using sleep deprivation as a form of torture or cruel, inhuman, or degrading treatment.
Waterboarding creates the sense that a person is drowning and is facing imminent death by strapping the individual down and pouring water over the face. Medical complications from the asphyxiation caused by waterboarding include: acute or chronic respiratory problems; chronic pain in the back and head; panic attacks; depressive symptoms; and prolonged posttraumatic stress disorder. Waterboarding was used extensively during the Spanish Inquisition, has been used by the most brutal regimes in the world, including the Khmer Rouge and the military junta in Argentina, and was prosecuted repeatedly after World War II as a war crime.
Next Steps for Congress
Congress must act now to ensure that the CIA does not engage in these types of cruel techniques that clearly violate U.S. law by passing a provision that would hold the intelligence community to the same standard we hold the military to. Currently detainees in the custody of the Department of Defense may only be subjected to interrogation techniques approved in the Army field manual. Military interrogators with over 20 years of field experience have testified that the army field manual allows for nuanced and sophisticated interrogations that elicit the necessary information. General Petraeus specifically stated in a letter to the troops in May that military experience “shows that the techniques in the manual work effectively and humanely in eliciting information from detainees.” It is the military that faces real “ticking time bombs” everyday in the form of improvised explosive devises. It is also the military that relies upon Common Article 3 when its personnel are taken into enemy custody.
The Intelligence Authorization Act reported out of conference last week includes a provision that would prohibit the use of any interrogation technique not approved in the Army field manual against detainees in the custody of the intelligence community. The conference report stated that the provision “reflects the conferees’ considered judgment that the CIA’s program is not the most effective method of obtaining the reliable intelligence we need to protect the United States from attack” and that “the conferees conclude that damage to international perception of the United States by the existence of classified interrogation procedures that apply only to the CIA program … outweighs the intelligence benefits[.]” The report also recognized that as the primary beneficiaries of the protections of the Geneva Conventions “the U.S. military should play an important role in ensuring that U.S. interrogation policy complies with those international protections.”
It is past time to resolve the ambiguity created by the CIA’s secret interrogation program. Congress should swiftly pass this provision and legislate one standard of humane treatment for all U.S. interrogations. The world no longer knows what the United States means when it says “we do not torture” and “we treat prisoners humanely.” That is a dangerous situation for our troops, and it has had a devastating impact on U.S. moral authority and standing in the world. We look to you and your colleagues, Mr. Chairman, to put that right. Thank you.