Legalizing Torture? Part II: The 30 May 2005 Bradbury Memo

[This is the secondin a series of posts analyzing the recently released Office of Legal Counsel memos discussing the legality of proposed coercive interrogation methods to be used against suspected members of al Qaeda. The second memo to be considered is the May 30, 2005 memo from Steven Bradbury to John Rizzo, the Senior Deputy General Counsel of the CIA, entitled Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogiation of High Value al Qaeda Detainees. Part One of the memo is here; Part Two is here.]

I wrote in Part One of this series that it seems unlikely that there are grounds for criminal prosecutions in the August 1, 2002 memo. However, I'm not so sure that can be said for the May 30, 2005 memo. In this one, Steven Bradbury was advising the CIA on the obligations of the US under the Convention Against Torture and specifically how those obligations impacted the use of certain coercive interrogation techniques. Thus this memo is very detailed about the use of these techniques, as it seeks to determine whether they fall afoul of international law.

There's a lot of stuff in this memo...but I want to focus on the question of waterboarding, as that seems to be the most controversial. Page 15 of the memo clearly spells out the US policies governing the use of the waterboard:

The waterboard may be authorized for, at most, one 30 day period, during which the technique can actually applied on no more than five days...Further, there can be no more than two sessions in any 24-hour period. Each session--the time during which the detainee is strapped to the waterboard--lasts no more than two hours. There may be at most six applications of water lasting 10 seconds or longer during any session, and water may be applied for a total of no more than 12 minutes during any 24-hour period.

However, on page 37, we read this shocking revelation:

The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah, IG Report at 90, and 183 times during March 2003 in the interrogation of KSM (Khalid Sheikh Mohammed).

If you go back and do the math on the instructions from p. 15, the rules limit the use of the waterboard to no more than 60 times per month (five days per month, two sessions per day, six applications of water during each session; 5x2x6=60). And yet, KSM was waterboarded 183 times.

The general standard that Bradbury applies throughout this memo is whether the action in question "shocks the conscience" and he eventually concludes, on p. 38, that "the CIA interrogation techniques, either their careful screening procedures and medical monitoring, do not 'shock the conscience.'" Back on p. 37, he argued that "the CIA usses enhanced techniques only to the extent reasonably believed necessary to obtain the information and takes great care to avoid inflicting severe pain or suffering or any lasting or unnecessary harm. In short, the CIA's program is designed to subject detainees to no more duress than is justified by the Government's interest in protecting the United States from further terrorist attacks."

Perhaps. But then what explains why KSM was waterboard 123 times beyond the established limit? That certainly doesn't square with the previously made claim that KSM only held out for 35 seconds during his waterboarding. So, even if the use of waterboarding is acceptable under US law, what happens when those laws themselves are broken? If waterboarding does, as Bybee noted in the 2002 memo, likely cause a fear of imminent death, using such a technique 200% more than is allowable under the law would certainly seem to shock the conscience. It is odd indeed that Bradbury mentions the number of times both detainees were waterboarded but doesn't account for the actions in any way.

This memo does seem to argue for criminal behavior, most likely on the part of the interrogators, and perhaps the higher-ups who knew of the actions and did nothing. This is still not an argument that the techniques were, if used according to the rules, torture or that the US was wrong to use these techniques. It certainly does point out the dangers in walking the fine line between coercive interrogation and torture. Given the fineness of the line and the paramount importance of legal definitions in this instance, if waterboarding was to be used it have been used within whatever legal framework was created to justify and bound its legality. When that line is crossed, the action moves into torture.

[I'll discuss the rest of this memo as well as the others later.]

Those In Power, Do

I've written several times recently that the inauguration of Barack Obama would not be likely to produce any major changes in US foreign policy. Indeed, we've already seen evidence of waffling, or at least strategic ambiguity, on the question of torture. But this weekend saw perhaps the most surprising evidence of this.

President Obama has, apparently, decided to allow the CIA to continue the policy of rendition in which suspected terrorists are transfered to other countries so that they may be detained and interrogated beyond the reach and protection of US law. As the Chicago Tribune reports:

The rendition program became a source of embarrassment for the CIA, and a target of international scorn, as details emerged in recent years of botched captures, mistaken identities and allegations that prisoners were turned over to countries where they were tortured.

The European Parliament condemned renditions as an "illegal instrument used by the United States." Prisoners swept up in the program have sued the CIA as well as a subsidiary of Boeing Corp., which is accused of working with the agency on dozens of rendition flights.

But the Obama administration appears to have determined that the rendition program was one component of the Bush administration's war on terrorism that it could not afford to discard.

The decision to maintain the use of rendition was contained in a small provision in the executive order that closed the CIA's secret overseas prisons that read that the order "do[es] not refer to facilities used only to hold people on a short-term, transitory basis." The members of al Qaeda, including many of those being held in Guantanamo, are exceedingly dangerous people who seek to kill as many people as they can. It is completely unsurprising that Obama has realized this, and it equally unsurprising that he has apparently decided that some extraordinary mechanisms need to remain in place to address this threat beyond those of the American criminal justice system.

What is, shocking, however is the apparent acquiesence to Obama's decision by Human Rights Watch, an organization that was at the forefront of the criticism leveled at President Bush for his policies. According to the Chicago Tribune:

"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured."

As Darren Hutchinson, a law professor at American University, points out, "in an effort to defend the new administration in Washington, Human Rights Watch has apparently modified its position on the issue of rendition, which it previously viewed as inherently abusive and inhumane." Hutchinson goes on to illustrate the degree of this about-face:

Human Rights Watch: Before
Human Rights Watch, a very respected and passionate defender of civil liberty, was one of the most vocal critics of the CIA's rendition program. In fact, Human Rights Watch prepared a comprehensive document that reports incidents of alleged torture of rendered individuals. The report makes the following policy recommendations:

The US government should:

Repudiate the use of rendition to torture as a counterterrorism tactic and permanently discontinue the CIA's rendition program;

Disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001, including detainees who were rendered to Jordan;

Repudiate the use of "diplomatic assurances" against torture and ill-treatment as a justification for the transfer of a suspect to a place where he or she is at risk of such abuse;

Make public any audio recordings or videotapes that the CIA possesses of interrogations of detainees rendered by the CIA to foreign custody;

Provide appropriate compensation to all persons arbitrarily detained by the CIA or rendered to foreign custody (emphasis added).

Human Rights Watch rightfully opposed the practice of torture by the Bush administration, but it also demanded the cessation of rendition and that victims of the practice receive compensation.

The organization's recommendations went even farther, however. In order to make sure that the program ended, Human Rights Watch recommended that other countries should:

Refuse to cooperate in secret detention and rendition efforts, and disclose all information about past cooperation in such efforts (emphasis added).

Human Rights Watch: After
Now that the L.A. Times reports that rendition will continue during the Obama administration, Human Rights Watch has apparently altered its position. According to Tom Malinowski, the organization's "Washington advocacy director," the risk of torture and other abuses does not mandate the prophylactic cessation of rendition. Instead (quoting the L.A. Times):

"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."

Malinowski said he had urged the Obama administration to stipulate that prisoners could be transferred only to countries where they would be guaranteed a public hearing in an official court. "Producing a prisoner before a real court is a key safeguard against torture, abuse and disappearance," Malinowski said (emphasis added).

Human Rights Watch, which has been unsurprisingly silent on this issue so far, most likely is confident that even if Obama does render prisoners to other countries that he will procure assurances that the prisoners will not be subject to torture. But there are no guarantees of that. That is the whole point of rendition: to get the subjects outside the reach of US law. Furthemore, HRW made it clear that its opposition to rendition was not solely based on the potential for torture. Hutchinson is appalled by this "flip-flop," calling Human Rights Watch's action "deplorable."

But just as Obama's action shouldn't be surprising, neither is that of HRW. Given the overt partisan and fawning nature of both the media and the major human rights organizations, as well as the not-so-slightly-creepy cult of personality that has sprung up around Obama, it shouldn't shock anyone that Human Rights Watch would shy away from criticizing the new president on grounds where it once lambasted President Bush.

Obama, Human Rights, and America's Image

The election of Barack Obama as president of the United States has given hope to all those who believe the administration of George W. Bush has sullied the good name of America. Obama is going to close Guantanamo Bay, end the use of torture, sign the unsigned international treaties, rebuild America's partnerships and alliances, stop climate change, and end the war in Iraq. Just today, Obama promised to "reboot" America's image abroad. No one expresses this belief more clearly than does former President Jimmy Carter in an op-ed in today's Washington Post:

while Americans continue to espouse freedom and democracy, our government's abusive practices have undermined struggles for freedom in many parts of the world. As the gross abuses at Abu Ghraib and Guantanamo Bay were revealed, the United States lost its mantle as a champion of human rights, eliminating our national ability to speak credibly on the subject, let alone restrain or gain concessions from oppressors. Tragically, a global backlash against democracy and rights activists, who are now the targets of abuse, has followed.

...

With a new administration and a new vision coming to the White House, we have the opportunity to move boldly to restore the moral authority behind the worldwide human rights movement. But the first steps must be taken at home.

President-elect Barack Obama has pledged to shut down the detention facility at Guantanamo Bay and end torture, which can be accomplished by executive orders to close the prison and by enforcing existing prohibitions against torture by any U.S. representative, including FBI and CIA agents. The detention of people secretly or indefinitely and without due process must cease, and their cases should be transferred to our courts, which have proved their competence in trying those accused of terrorism. Further, a nonpartisan expert commission should be named to conduct a thorough review of U.S. practices related to unwarranted arrest, torture, secret detention, extraordinary rendition, abandonment of habeas corpus and related matters. Acknowledging to the world that the United States also has made mistakes will give credence to our becoming "a more perfect union" -- a message that would resonate worldwide. Together, these actions will help us restore our nation's principles and embolden others abroad who want higher moral standards for their own societies.

By putting its house in order, the United States would reclaim its moral authority and wield not only the political capital but also the credibility needed to engage in frank but respectful bilateral dialogues on the protection of human rights as central to world peace and prosperity.

To a degree, I agree with Carter. Bush most definitely has done damage to the moral reputation of the United States. However, I'm not so sure Obama will be able to do as much to fix that reputation as Carter and his ilk hope.

First, as Carter is well aware, the job of president is vastly different than the job of critic of the president. Being president means assuming responsibility for the security of the nation and the well-being of its citizens; sometimes those responsibilities demand actions that run counter to personal moral sentiments. Carter knows this first hand: He entered the White House on a "human rights first" platform, pledging to end US support of dictators simply because they weren't communist and promising to tie US foreign aid to human rights standards. He quickly learned that such a moral approach to foreign policy risked compromising strategic interests and strengthening the Soviet Union. Very quickly, Carter reversed this policy. Nonetheless, many analysts believe that the Soviet invasion of Afghanistan was, to some degree, prompted by Soviet perceptions of American weakness.

Second, rebuilding America's moral reputation may, paradoxically, require sullying it. Carter and many other human rights activists lodge their hopes for global moral improvement with the United Nations. To some degree, this makes sense. The UN is the closest thing the world has to a world parliament in which all the countries of the world can express their collective opinion. The UN has produced some of the broadest statements on human rights, such as the Universal Declaration of Human Rights and the Genocide Convention.

But that's where things get murky. While the UN may be able to produce broad statements about human rights, it is unable to do much to advance that noble cause. As Joseph Locante points out:

More than half of the 47 members of the Human Rights Council, the principal U.N. body charged with promoting human rights, fail to uphold basic democratic freedoms in their own countries. Using the canards of anti-colonialism and anti-Americanism, they block resolutions that might embarrass them on the world stage. Thus, some of the most egregious offenders of human rights--including China, Cuba, North Korea, Saudi Arabia, Sudan, and Zimbabwe--typically evade censure. Last week, for example, the Human Rights Council approved a resolution praising the Kinshasa government of the Democratic Republic of Congo, whose military stands accused of mass rape and murder.

Meanwhile, U.N. preparations for a world conference against racism, a follow-up to a controversial 2001 event in Durban, carry the familiar stigmata of moral cynicism. The U.N. planning committee includes nations such as Libya, Iran, Pakistan, and Cuba. What exactly can Iran--which defends policies that criminalize and brutalize its gay community--teach the world about combating racism? Safely inoculated against self-examination, the U.N. committee has produced a draft declaration suggesting that the United States, Western Europe and other liberal democracies are discriminatory against Islam and fundamentally racist.

The problem is, as I have written about many times here, the UN fundamentally privileges sovereign equality over liberal values. Thus, the UN finds itself forced to place North Korea and Zimbabwe on the UN Commission for Sustainable Development but unable to condemn either country for their brutality towards their citizens.

Law represents an aggregation of individual interest backed by an enforcement power. Without either of these factors, law cannot exist. If it has no ability to be enforced, it is empty; if it does not represent collective interest, it is meaningless. International law often fails on both grounds. But most importantly, because its highest principle is sovereignty, it can't truly represent collective interest. Why should anything the UN be considered legitimate simply because it represents the expressed will of illiberal regimes?

Truly advancing the cause of human rights, then, will require that the US look outside and beyond the framework of the United Nations. Just as NATO chose to intervene in Kosovo without the legal authorization of the UN because it was the right thing to do, advancing the cause of human rights demands action in Sudan, Zimbabwe, and North Korea, just to name the worst. And when the procedural rules of the UN, committed to the preservation of sovereignty as they are, get in the way, those rules must be ignored in order adhere to the true law of liberalism. Such actions will be illegal, and unpopular with many states. But to deny, as Carter and his ilk often do, that such actions are what is required to really promote human rights is disingenous.

The US need not take such actions alone. Here, Carter is correct to point to the need for allies and reputation. What makes Kosovo a legitimate violation of international law was the broad spectrum of states, and the institutional process, that authorized the intervention when the UN would not. President Obama will have to reach out to the US's ideological kin. But he will also have to violate international law. Let us be clear that such violations are necessary, and may in fact harm the US's reputation. But such harms are the price of liberalism. International law must be recognized for what it is and what it is not. It is not the tool to uplift the downtrodden; it is not the tool to bring freedom to the world's oppressed. If and when President Obama takes action to advance human rights and freedom around the world, let us not blame him when those actions break the "law."