St. Mary's Law School Professor to Senate: Enhanced Interrogation ≠ Torture

In a hearing this week on the Bush Administration's torture memos, Professor Jeffrey F. Addicot, Director of the St. Mary's law school's Center for Terrorism Law, tells the U.S. Senate's Administrative Oversight and the Courts subcommittee that he does not consider "enhanced interrogation" methods such as waterboarding to amount to torture.

The witnesses at the hearing included two other law professors, a former State Department official, and a former FBI agent and interrogator. From NPR's coverage of the hearing:

Of the five witnesses who testified before the panel Wednesday, only one, Jeffrey Addicott of St. Mary's University School of Law's Center for Terrorism Law, defended the methods approved by the Bush White House.

"In my legal opinion, the so-called enhanced interrogation techniques did not constitute torture," Addicott said.

Politics Daily coverage of the hearing quotes the second law prof calling the torture memos an "ethical train wreck," and the third noting that just like with the World War II internment of American citizens of Japanese descent, "Good people, fearful for the safety of their fellow Americans, made bad decisions."

The former State Department official called the enhanced interrogation program a "collective failure." The ex-FBI agent also testified that these tactics were unreliable and ineffective.

The earliest torture memo sets out ten "enhanced interrogation" methods the CIA wanted to use. They include:

1. attention grasp: the interrogator grabs you by the collar and pulls you toward him
2. walling: you're stood against a flexible false wall, yanked forward, then pushed back into the wall
3. facial hold: he puts a hand on each side of your face, holding your head immobile
4. facial slap: what it sounds like
5. cramped confinement: they put you in a dark box and restrict your movement--you can stand or sit in the larger one, where they stick you for 18 hours; you can only sit in the smaller one for up to 2 hours
6. wall standing: you stand 4-5 feet from a wall and lean against it, putting all your weight on your fingertips; you can't reposition your hands or feet
7. stress positions: "designed to produce physical discomfort associated with muscle fatigue"
8. sleep deprivation: keep you awake for up to 72 hours
9. insects placed in a confinement box: just like No. 5 above, but they tell you they're putting a stinging insect in there, too (relax, it's just a caterpillar)
10. waterboarding: they strap you to an inclined board (feet up, head down) and put a water-soaked cloth to your face while pouring water on it for 20 to 40 seconds, creating a "perception of 'suffocation and incipient panic'"

Prof. Addicott elaborates on why "enhanced interrogation" is not torture in an op-ed for Jurist Legal News & Research. He cites the 1978 European Court of Human Rights case Ireland v. United Kingdom, which holds that five interrogation techniques (wall-standing, hooding, subjecting to noise, sleep deprivation, and deprivation of food and drink) used by the British government are "inhuman and degrading," but do not sink to the depths of torture. The professor concludes:

Considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques that were authorized – waterboarding – would not constitute torture (the CIA method is similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival).

Prof. Addicott refers to the Survival, Evasion, Resistance, Escape training, which he has probably received himself. However, one of the torture memos (on page 6) notes a huge difference between waterboarding military trainees and waterboarding prisoners:

Individuals undergoing SERE training are obviously in a very different situation than the detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training.

I have a lot of respect for Prof. Addicott, who taught me Federal Civil Procedure my first semester of law school. He might even be right as far as whether anyone can be prosecuted for any "enhanced interrogation." But leaving aside whether these techniques really are effective (and it doesn't look like they are) and whether the government should prosecute anyone over this, my main fear is that while now these methods are supposedly used only on "the bad guys," unless we put a stop to this immediately, one day we might see our government using them on us.

ADDENDUM: This story by the Washington Independent offers further testimony and additional analysis:

If it were torture, however, the Bush administration officials would be out of luck, Addicott continued. “Those who order, approve or engage in torture must be criminally prosecuted,” he said. “There is no way out of this. We have to prosecute under the torture convention. We can’t say, on the one hand, those people engaged in torture and not do anything. On the other hand, if we say they do not rise to level of torture then we’re not under any international obligation to prosecute.”

Addicott did not mention, however, that the United Nations Convention Against Torture — the same convention cited by Addicott — signed by Ronald Reagan and implemented by U.S. federal law, forbids not only “torture” but “cruel, inhuman and degrading treatment”, which must also be prosecuted under the law. And it was the definition of cruel, inhuman and degrading treatment, in particular, that gave rise to the objections of Zelikow and others.

That’s because, as later OLC memos acknowledged, the cruel, inhumane and degrading treatment, according to the reservations included when the United States signed the anti-torture treaty, is to be interpeted in accordance with the U.S. Constitution. If the actions would be prohibited under the substantive due process clause of the Constitution’s Fifth Amendment, or by the Eighth Amendment’s prohibition on Cruel and Unusual Punishment, then it would be likewise prohibited — and must be prosecuted — under the U.S. anti-torture statute.