The verdict is in: Executive Order reaffirms US torture

On Saturday, I wrote that the recent Executive Order on CIA interrogation allows the agency to continue to use, among others, techniques like waterboarding, stress positions, and sleep deprivation. Over the past several days, many journalists, pundits, and academics have analyzed the contents of the Executive Order as well. The verdict: "enhanced interrogation methods" indistinguishable from torture can continue to be employed by the CIA in secret prisons.

Marty Lederman of Balkinization opined:

The President has finally signed the Executive Order purportedly construing Common Article 3 of the Geneva Conventions, as required by the Military Commissions Act (MCA). It is, in a word, worthless.

[...]

The only truly important section of the E.O. is section 3(b)(i)(C), which defines the category of violence that will be deemed to violate Common Article 3 for purposes of determining whether a CIA interrogation program comports with CA3. In addition to torture as defined by the federal criminal statute, and the forms of violence that remain prohibited under the new WCA, that subsection of the E.O. prohibits only "other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in [the War Crimes Act]."

In other words, if a form of violence is not already prohibited by federal criminal law, and is not "comparable" to the forms of violence prohibited by the WCA, the CIA is not prohibited from using it.

Does this prohibit the CIA "enhanced" techniques? Who knows?

Dan Froomkin, of the Washington Post, provided on Monday an astute roundup of Executive Order commentary from the nation's top papers:

Karen DeYoung writes in The Washington Post: "President Bush set broad legal boundaries for the CIA's harsh interrogation of terrorism suspects yesterday, allowing the intelligence agency to resume a program that was suspended last year after criticism that it violated U.S. and international law. . . .

"Two administration officials said that suspects now in U.S. custody could be moved immediately into the 'enhanced interrogation' program and subjected to techniques that go beyond those allowed by the U.S. military.

"Rights activists criticized Bush's order for failing to spell out which techniques are now approved or prohibited. . . .

"'All the order really does is to have the president say, "Everything in that other document that I'm not showing you is legal -- trust me," ' said Tom Malinowski of Human Rights Watch."

William Douglas and Jonathan S. Landay write for McClatchy Newspapers: "Some experts in human-rights law said Bush's order contains 'loopholes' that would allow the CIA to continue using aggressive interrogation techniques that others would consider torture.

The order "'prohibits willful and outrageous acts of abuse, but only does so where the purpose is to humiliate and degrade an individual. But if an interrogator says these techniques, whether it's water-boarding or stress techniques, are done to elicit information, but not humiliate a detainee, they could argue that that would not run afoul of the executive order,' said Jonathan Hafetz, a lawyer with New York University School of Law's Brennan Center for Justice, which has represented detainees held by the United States.

"'The same thing goes for acts to denigrate someone's religion. If you took away someone's Quran not to denigrate, but as an interrogation technique to gain information -- which they've done in the past -- they could argue it was allowed under the order,' he said. . . .

"'Let's not forget that the administration's theory of executive authority is very broad. They reserve the right to interpret laws in ways no one agrees with in emergency situations,' said John Sifton of Human Rights Watch, a nonprofit activist group."

And Sifton said that the CIA program under Bush's order remains in violation of international law. "'Put torture to the side for a second. The CIA detention program, even if no mistreatment is occurring, is still illegal under international law because it allows incommunicado, indefinite detention. That is enforced disappearance. That exists entirely outside the rule of law,' he said."

Charlie Savage writes in the Boston Globe that "most of the president's executive order is written in generalities, leaving unanswered whether the CIA will be free to subject prisoners to a range of specific techniques it has reportedly used in the past, including long-term sleep disruption, prolonged shackling in painful stress positions, or 'waterboarding,' a technique that produces the sensation of drowning.

"The administration is separately crafting a list of permitted and forbidden tactics that it said will comply with Bush's executive order, but the list is classified. In a background conference call with reporters yesterday, a senior administration official declined to say whether the new guidelines will permit tactics such as waterboarding.

"'I am not in a position to talk about any specific interrogation practices,' the official said. 'It is impossible for us, consistent with the objectives of such a program, to publicize to the enemy what practices may be on the table and what practices may be off the table. That will only enable Al Qaeda to train against those that are on or off.'"

Mark Mazzetti writes in the New York Times that the order "does not authorize the full set of harsh interrogation methods used by the C.I.A. since the program began in 2002. But government officials said the rules would still allow some techniques more severe than those used in interrogations by military personnel in places like the detention center in Guantánamo Bay, Cuba.

"Several officials said the permitted techniques did not include some of the most controversial past techniques, among them 'waterboarding,' which induces a feeling of drowning, and exposure to extremes of heat and cold. . . .

"Earlier this year, State Department officials rejected a draft of the executive order because they believed that the language was too permissive and could open the Bush administration to challenges from American allies that the White House was legalizing methods that approach torture. Some Bush administration officials, including members of Vice President Dick Cheney's staff, pushed for a more expansive interpretation of Geneva Convention language and for interrogation methods that the C.I.A. had not even requested."

Greg Miller writes in the Los Angeles Times: "The order places no restriction on employing coercive methods -- such as sleep deprivation and the use of so-called stress positions -- that are expressly off-limits for the military and domestic law enforcement agencies. . . .

"Critics called Bush's order frustratingly vague and said its most specific language addressed abuses that occurred at Abu Ghraib and other military facilities that were never part of the CIA's interrogation program. . . .

"'It certainly was a positive thing to see express prohibitions on things like sexual humiliation,' said Jumana Musa, advocacy director for Amnesty International in Washington. 'But the places where [the document] is silent speak volumes.'"

Phillip Carter, of Slate, had this to say:

The order does nothing to repudiate earlier interpretations of the Bush administration, which narrowed "torture's" scope to allow coercive interrogation techniques including sleep deprivation, water boarding, and extraordinary rendition, among others. Instead of proscribing torture, it adds yet another layer to the legal regime supporting those earlier policies. And it further opens up new loopholes for creative lawyers in the CIA and Pentagon. The end result is a policy that misses a historic opportunity to correct the excesses of the last six years.

Director of National Intelligence, Admiral Mike McConnell, was on Meet the Press on Sunday and answered questions about the Executive Order. He parroted the administration's claim that the "enhanced methods" authorized did not constitute torture-- though conceded they would not be appropriate for use on US citizens:

MR. RUSSERT: How do you fine—define torture?

Admiral McCONNELL: Well, torture is—an attempt to define torture in the, in the executive order, it gives examples: mutilation or murder or rape or physical pain, those kinds of things. Let me just leave it by saying the, the techniques work, it’s not torture. They’re not subjected to heat or cold, but it is effective. And it’s a psychological approach to causing someone to have uncertainty and in a situation where they will feel compelled to talk to you about what you’re asking about.

MR. RUSSERT: And we would find it acceptable if a U.S. citizen experienced the same kind of enhanced interrogation measures?

Admiral McCONNELL: Tim, it’s not torture. I would not want a U.S. citizen to go through the process, but it is not tortures, and there would be no permanent damage to that citizen.

So the question is: are these methods indeed torture? In American Torture, I show that "enhanced techniques" are precisely the same methods used by Soviet Union and Communist China during the Cold War. These methods have been considered torture for decades. A forthcoming report by Physicians for Human Rights and Human Rights First seconds this view:

Enhanced interrogation “techniques” are likely to cause “severe” or “serious” physical and mental harm to detainees. The report closely examines the MCA and other US law, informed by medical and psychological knowledge, showing that the authorization of these enhanced interrogation techniques, whether practiced alone or in combination, may constitute torture and/or cruel and inhuman treatment and consequently place interrogators at serious legal risk of prosecution for war crimes and other violations.

The Physicians for Human Rights-Human Rights First report cites a recent study in the Archives of General Psychiatry titled: "Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent?" The authors-- Metin Basoglu, MD, PhD; Maria Livanou, PhD; and Cvetana Crnobaric, MD-- found that "enhanced methods" and torture were one and the same:

Context: After the reports of human rights abuses by the US military in Guantanamo Bay, Iraq, and Afghanistan, questions have been raised as to whether certain detention and interrogation procedures amount to torture.

Design and Setting: A cross-sectional survey was conducted with a population-based sample of survivors of torture from Sarajevo in Bosnia and Herzegovina, Banja Luka in Republica Srpska, Rijeka in Croatia, and Belgradein Serbia.

Conclusions: Ill treatment during captivity, such as psychological manipulations, humiliating treatment, and forced stress positions, does not seem to be substantially different from physical torture in terms of the severity of mental suffering they cause, the underlying mechanism of traumatic stress, and their long-term psychological outcome. Thus, these procedures do amount to torture, thereby lending support to their prohibition by international law.

Debate over, right?