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Matthew Eaton Mr. Elwood Senior Project 24 April 2015

The Debate Over Interrogation Post 9/11 What would you do to save the lives of those you love? How far would you go to fight for justice for those who have died? In the wake of the events of September 11th, just days after terrorists had claimed the lives of 2,958 innocent Americans, George W. Bush answered these questions with resounding conviction. In his address to congress on September 20th, the

President firmly stated, "Tonight, we are a country awakened to danger and called to defend freedom. Our grief has turned to anger and anger to resolution. Whether we bring our enemies to justice or bring justice to our enemies, justice will be done" (Text: President Bush Addresses the

Nation). He went on to say, "We will direct every resource at our command -- every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war -- to the destruction and to the defeat of the global terror network" (Text: President Bush Addresses the Nation). Bush was met with resounding praise and support. Following Bush's strong stance against terrorism his national approval rating soared to the highest rating ever for any president at 90 percent (Presidential Approval Ratings --

George W. Bush). Americans wanted justice, and rightfully so. When George Bush introduced the Enhanced Interrogation Program as a way to satiate this longing for justice, the response was again approval. Porter Goss, former House intelligence chairman and director of Central Eaton 2

Intelligence from 2004 to 2006, confirms this by stating that, "Among those being briefed, there was a pretty full understanding of what the CIA was doing, and the reaction in the room was not just approval, but encouragement" (Murdock). According to Jose Rodriguez, the CIA's then- director of clandestine services, congressional leaders from both the Republican and Democratic parties were briefed on the Program at least 40 times between 2002 and 2009 (Murdock). Even

Dianne Feinstein, the orchestrator of a recent report condemning U.S. interrogation tactics following 9/11, said in May 2002 in regards to defeating al Qaeda that, "We have to do some things that historically we have not wanted to do to protect ourselves" (Murdock). Given the apparent support of justice and Enhanced Interrogation directly following 9/11, what could have prompted Feinstein and others to vehemently oppose the program today?

The critics of the Enhanced Interrogation Program have seemingly forgotten the context of the policies that were put in place. They have forgotten the hundreds of people leaping from the World Trade Center on September 11th to avoid being burned alive. They have forgotten the loved ones of 1,114 people killed at the World Trade Center who never received remains or anything else from those they mourn. They have forgotten those for whom we pursued justice.

The Enhanced Interrogation Program put in place following 9/11 was necessary to ensure the safety of the American people in the face of immediate danger. It complied with National and

International law, it was effective in extracting vital information, and it operated within the confines of morality. Most important, implementing the program carried out George Bush's promise to pursue justice and it paid respect to all of those who lost their lives on September 11,

2001. Eaton 3

In order to properly analyze the decision to implement harsher interrogation techniques following 9/11, the first order of business is to determine whether the program put in place followed the letter of the law nationally and internationally. The best way to do this is to address the arguments of those questioning the program's legality. Before beginning, it is necessary to understand exactly what the Enhanced Interrogation Program was. The program was an interrogation program that expanded the interrogation techniques available to use on prisoners. It was implemented after 9/11 as a means of quickly and effectively extracting information in order to prevent subsequent attacks on America. The new techniques allowed, according to an official U.S. Justice Department memo, were the "abdominal slap" where the interrogator would slap the detainees abdominals with the back of his hand, the "attention grasp" where the interrogator would grab the detainee by the collar and pull him closer, "cramped confinement", "dietary manipulation", "the facial hold" where the interrogator would hold the detainee's head between his or her hands so it can't move , "the facial slap/insult slap", "nudity",

"stress positions" , "sleep deprivation", "wall standing", "walling" where detainees where thrown against walls, "water boarding", and "water dousing" (Justice Department Memos on

Interrogation Techniques). Keep these techniques in mind when the term Enhanced Interrogation is used. These techniques will be explored in greater depth later on in this paper, especially .

A common argument critics of the program use is that the EIP violated the Geneva

Conventions. The Geneva Conventions are "a series of treaties on the treatment of civilians, prisoners of war (POWs) and soldiers who are otherwise rendered hors de combat, or incapable of fighting" (Legal Information Institute). The primary point of concern is whether or not Eaton 4 members of terrorists groups such as Al-Qaida qualify as POWs. POWs are given the greatest protections among all combatants by the Geneva Conventions. Specifically, prisoners of war

"must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity" (The Geneva Conventions of 12 August 1949). Of course, this makes it clear that if terrorists are in fact POWs, the use of Enhanced Interrogation would certainly fall under the category of at least intimidation, rendering it illegal. However, there are a few discrepancies that disqualify terrorists from being considered prisoners of war. John Woo, deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from

2001 to 2003 brings these issues to light when he states:

The Justice Department's Office of Legal Counsel - where I worked at the time -

determined that the Geneva Conventions legally do not apply to the war on

terrorism because Al-Qaida is not a nation-state and has not signed the treaties.

Al-Qaida members also do not qualify as legal combatants because they hide

among peaceful populations and launch surprise attacks on civilians, violating the

fundamental principle that war is waged only against combatants (Yoo,

Commentary).

In this case, Yoo’s rationale is very persuasive and clearly shows that Al Qaeda members do not receive POW status due to the fact that they belong to no state that has signed the treaty, and they violate the laws of war.

However, it is also important to consider the Taliban, another faction in the Middle East that counted among its members those subjected to Enhanced Interrogation techniques. Many argue that the Taliban did in fact qualify as prisoners of war because the Taliban operated as its Eaton 5 own government. However, this is also incorrect. The Taliban "did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war" (Yoo, Commentary). Given this analysis of both Al-Qaida and the Taliban terrorist factions, it is clear that members of these organizations did not qualify as prisoners of war because they did not meet the requirements for POW status laid out in the

Geneva Conventions. However, this still leaves some questions unanswered. Chiefly, don't unlawful combatants who are not considered prisoners of war still receive some provisions under the Geneva Conventions? Yes, they do. The Geneva Conventions lay out 4 basic rights that are granted to any prisoner during a time of conflict. The document prohibits,

Violence to life and person, in particular murder of all kinds, mutilation, cruel

treatment and torture; Taking of hostages; Outrages upon personal dignity, in

particular, humiliating and degrading treatment; The passing of sentences and the

carrying out of executions without previous judgment pronounced by a regularly

constituted court affording all the judicial guarantees which are recognized as

indispensable by civilized peoples (The Geneva Conventions of 12 August 1949).

These rights are granted to members of Al-Qaida and the Taliban even though they are not considered POWs and are deemed unlawful combatants. However, the interrogation policies put in place did not violate any of the aforementioned rights. To illustrate this fact it is important to understand the role that Congress has played in these affairs.

In 1984, the Senate approved the U.N. Convention Against Torture. As part of this process, Congress conducted an investigation of sorts, in hopes of providing a working definition of torture as well as unpacking some of the vague statements made in the Geneva Conventions. Eaton 6

First, Congress tried to make sense of phrases in the Geneva Conventions such as "humiliating and degrading treatment." They eventually came to a conclusion. According to John Yoo, "The

Senate also made clear that it believed the treaty's requirement that nations undertake to prevent

'cruel, inhuman or degrading treatment or punishment' was too vague. The Senate declared its understanding that the United States would follow only the Constitution's prohibition of cruel and unusual punishment" (Yoo, Commentary). Clearly, Congress was unable to make sense of some of the imprecise language used in the Geneva Conventions. However, sticking to the U.S.

Constitution's prohibition of cruel and unusual punishment still leaves room for interpretation, especially when considering that the Constitution was written to apply to common criminals on

U.S. soil, not international war criminals. It seems that it is still too difficult to use the term

"cruel and unusual punishment" as a means of determining if certain interrogation techniques violated legal code; it is simply too vague.

Given this, the better question to ask in order to determine the legality of these techniques is as follows: Do the Enhanced Interrogation techniques amount to torture? Congress clearly understood this. During the same 1994 U.N. Convention Against Torture, the primary order of business was to come up with a working definition for torture. Congress knew that the best way to judge the legality of certain interrogation techniques was to analyze them using the term

"torture" as the deciding factor. This is why providing a definition of torture was so essential to them. Congress concluded that torture was any act "by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person" (Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, 113). This definition provided the Eaton 7 foundation for a more detailed definition issued by the Justice Department in a memo released in

August of 2002 which stated:

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 U.S. law), it must result in significant psychological harm of significant

duration, e.g., lasting for months or even years... We conclude that the statute,

taken as a whole, makes plain that it prohibits only extreme acts (Memorandum

for Alberto R. Gonzales Counsel to the President, 1).

Of course, critics could still argue that the Justice Department exaggerated the definition put forth by Congress by interpreting "severe physical pain or suffering" as physical pain akin to organ failure and psychological pain long term in nature. However, given the resources at their disposal, this definition is certainly a reasonable interpretation of the ambiguous definition issued by Congress.

Due to the the absence of a definition of "severe" from Congress, the Justice Department had to properly define "severe" in order to determine the effect congress's definition would have on the legality of certain interrogation techniques. Naturally, the first place the Justice

Department went was the dictionary, in order to provide a basis for their evaluation of the undefined term. According to the Department's 2002 memo, it consulted the Oxford English

Dictionary 572 which defined severe as "Of pain, suffering, loss, or the like: Grievous, extreme" (Memorandum for Alberto R. Gonzales Counsel to the President, 5). An additional definition identified severe as "hard to sustain or endure" (Memorandum for Alberto R. Gonzales Eaton 8

Counsel to the President, 5). This second definition was especially helpful to the department. In the same memo the Justice Department concluded that, "Thus, the adjective 'severe' conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure" (Memorandum for Alberto R. Gonzales Counsel to the President, 5). Now that the Justice Department had the beginnings of a definition, they consulted previous United

States legal documents containing the phrase "severe pain" in order to solidify their understanding of the phrase. The most significant place that the phrase appears is in "statutes defining an emergency medical condition for the purpose of providing health benefits" (Memorandum for Alberto R. Gonzales Counsel to the President, 5). The memo goes on to state that:

These statutes define an emergency condition as one "manifesting itself by acute

symptoms of sufficient severity (including severe pain) such that a prudent lay

person...could reasonably expect the absence of immediate medical attention to

result in—placing the health of the individual . . . (i) in serious jeopardy, (ii)

serious impairment to bodily functions, or (iii) serious dysfunction of any bodily

organ or part" (Memorandum for Alberto R. Gonzales Counsel to the President,

6).

This shows that in past legal literature severe pain was understood to be synonymous with serious bodily damage and organ failure. Given the fact that the Justice Department had no additional information pertaining to the meaning of severe pain, its only choice was to accept the meaning the phrase has had in other instances. Eaton 9

Finally, it is important to note that the Justice Department did not need to define the meaning of severe mental harm. Although Congress did not give any additional information about the meaning of severe physical harm, they did elaborate on what the phrase severe mental harm was intended to mean in a 1990 Senate analysis of the Convention against Torture. The document asserts that "the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm" (U.S. reservations, declarations, and understandings, International Convention on the Elmination of All Forms of Racial

Discrimination, 140 Cong. Rec. S7634-02). So, the Senate had already reached the conclusion that severe mental harm implied "prolonged" mental harm. This allowed the Justice Department to directly apply this definition as a means of reviewing the interrogation techniques they planned to implement. In conclusion, the Justice Department worked to the best of its abilities with the vague terminology and limited information they were given to construct the most accurate definition of torture possible. They did so with regard for factual information and the law.

The Justice Department's definition gives much more specificity to the debate over the legality of the Enhanced Interrogation Program. Where the previous prohibitions, "cruel treatment and torture...Outrages upon personal dignity, in particular, humiliating and degrading treatment" were very vague, the new definition is very precise and allows for real analysis of the program. Of course the question is whether the techniques implemented in the program were

"extreme acts," whether the physical pain applied to terrorists was "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, Eaton 10 or even death." It is also critical to review the mental component of these techniques. The best way to apply this definition is to look specifically at a few of the interrogation techniques to see if they are in violation of the law. Upon reviewing the techniques referenced earlier in this paper, it is apparent that many of the techniques need no further explanation because they clearly do not inflict physical pain equivalent to organ failure or long term mental harm. For example, "the facial hold," "the abdominal slap", and "the attention grab" among others do not even approach severe physical or mental harm. However, some of the techniques are far less clear-cut. The legality of the EIP hinges on these techniques.

The first technique that needs to be reviewed is "water dousing." Water dousing has raised concerns because of the fear that exposure to cold water for long periods of time could lead to hypothermia which certainly would be considered "serious physical injury." Those implementing the technique also considered this. In the 2005 memorandum detailing the program and the various new techniques, the CIA asserts:

OMS [The CIA's Office of Medical Services] has advised that, based on the

extensive experience in SERE [Survival, Evasion, Resistance, and Escape]

training, the medical literature, and the experience with detainees to date, water

dousing as authorized is not designed or expected to cause significant physical

pain, and certainly not severe physical pain (Justice Department Memos on

Interrogation Techniques).

The report goes on to detail that the CIA came to this conclusion because they recognized that prolonged immersion in cold water could be painful, but recognized that the water dousing technique implemented in the program did not involve any immersion. Additionally, according Eaton 11 to the report, "use of the technique with water of a given temperature must be limited to no more than two-thirds of the time in which hypothermia could be expected to occur from total immersion in water of the same temperature" (Justice Department Memos on Interrogation

Techniques). The Justice Department also concluded that no mental harm was associated with water dousing. The memo also mentioned the fact that a psychologist needed to be present during every interrogation to monitor the health of the detainees (Justice Department Memos on

Interrogation Techniques). The Justice Department did this, not out of fear that mental harm could occur, but simply as an additional provision to ensure the safest environment possible.

Clearly, the Justice Department took every precaution necessary to ensure that the techniques would not constitute torture. They also consulted OMS extensively, the best medical experts at their disposal. It would be imprudent to neglect the findings of these professionals. Given all of this evidence, it is clear that water dousing, if performed with the necessary precautions laid out in the law, does not qualify as torture. Can the same be said for sleep deprivation?

Sleep deprivation is another key technique to review because sleep is so central to the body's ability to survive. Surely preventing people from sleeping for long periods of time will cause severe physical harm, right? Apparently not. The Justice Department's memo included a reference to James Horne's book Why We Sleep: The Functions of Sleep in Humans and Other

Animals. According to Horne, "The longest studies of sleep deprivation in humans...involved volunteers who were deprived of sleep for 8 to 11 days... Surprisingly, little seemed to go wrong with the subjects physically" (Justice Department Memos on Interrogation Techniques).

Although sleep deprivation may seem very taxing on the body initially, it is evident that controlled sleep deprivation has very few complications. It is undoubtedly very uncomfortable, Eaton 12 but severely painful? Studies seem to say no. OMS also gave restrictions to the length of sleep deprivation employed by the CIA, limiting each session to 180 hours, or seven and a half days.

This is a shorter period of time than the aforementioned study which yielded no serious physical problems. It is safe to say that seven and a half days would be even less harmful. There are no prolonged mental problems associated with sleep deprivation either. Studies have shown that the only real mental complications associated with lack of sleep are hallucinations (Justice

Department Memos on Interrogation Techniques). However, these hallucinations always dissipate quickly. Therefore, hallucinations are not considered long term mental problems because the definition of torture clarifies long term to mean months or even years. Finally, the memo includes provisions for medical advisors to be on hand during every interrogation who are equipped to step in should any unexpected physical or mental problem arise. Taking all of this evidence into consideration, primarily that there is no serious physical or mental pain associated with prolonged loss of sleep, it is apparent that sleep deprivation is not torture. However, there is still one more technique that needs to be reviewed.

The interrogation technique surrounded by the most controversy is "waterboarding."

Waterboarding is a "method of torture in which water is poured into the nose and mouth of a victim who lies on his back on an inclined platform, with his feet above his head" (Waterboarding). This practice is meant to simulate drowning and induce panic.

However, there is no reason to believe that waterboarding causes any severe physical damage. In fact, waterboarding has been practiced on several thousand members of the United States

Military as part of the SERE training program (Justice Department Memos on Interrogation

Techniques). None of the soldiers subjected to waterboarding have sustained any physical Eaton 13 problems or injuries (Justice Department Memos on Interrogation Techniques). Of course, during SERE training the waterboarding sessions are not as frequent or lengthy as those implemented on terrorists. However, even under these more severe circumstances there is still no correlation between waterboarding and physical injury. At the time the CIA memo was released, interrogators had already used waterboarding on two detainees and found no evidence of any harm, let alone severe physical injury (Justice Department Memos on Interrogation

Techniques). Waterboarding simply does not inflict the kind of long term physical problems necessary for it to be labeled as torture given the definition of torture the United States was operating with.

Discomfort associated with waterboarding also does not qualify as severe mental pain because the mental discomfort caused by waterboarding is not long term mental suffering.

Waterboarding certainly elicits mental responses among detainees who feel as if they are going to die. However, this is momentary panic and has no bearing on long term health. According to the Justice Department, "We understand from the CIA that to date none of the thousands of persons who have undergone the more limited use of the technique in SERE training has suffered prolonged mental harm as a result" (Justice Department Memos on Interrogation Techniques).

Additionally, the two terrorist detainees who had been subjected to waterboarding did not show any signs of mental harm 25 months after their first waterboarding session (Justice Department

Memos on Interrogation Techniques). Again, trained physicians are on hand during every waterboarding session to ensure the safety of the prisoner. A final point cementing the fact that waterboarding is not torture are the numerous reports of journalists volunteering to be waterboarded. In fact, a journalist named Kaj Larsen even went back for a second waterboarding Eaton 14 session (Journalist Volunteers for Waterboarding). Would Larsen really undergo "torture" another time after he had already experienced it once? Waterboarding cannot be called torture if people are volunteering to do it simply for a story. Critics of waterboarding mention it with the same disgust as they do medieval torture techniques. Has any Journalist volunteered to be subjected to the rack? Obviously not. Waterboarding clearly bears no resemblance to those savage techniques and is clearly not torture.

One of the staples of any argument made by a critic of the Enhanced Interrogation

Program is the mention of the mistreatment of prisoners in a detention center at Abu Grhaib, a city twenty miles west of Baghad. Controversy surrounding Abu Ghraib erupted following leaked photos of U.S. soldiers smiling next to prisoners subjected to a variety of abuses, all of which fell outside of the permitted techniques legislated by the Justice Department. This prompted a substantial wave of investigations which led to many startling discoveries. First among these was the official Army Regulation 15-6 military inquiry conducted in 2004 by

Antonio Taguba, a major general in the United States Army. The report referenced many of the cruelties that took place in the prison. According to Taguba's report, abuses at Abu Ghraib included placing dog chains around naked detainee's necks, forcing detainees into sexually explicit positions to be photographed, as well as one case of a male MP guard having sex with a female detainee (Article 15-6 Investigation of the 800th Military Police Brigade, 16-17). Taguba also discovered similar behavior at Camp Bucca prison in Iraq. Of course, this kind of behavior is unacceptable and inexcusable. It is vile and in no way represents the way the United States

Military wishes to conduct itself. However, this disregard for the law does not have any bearing on the law itself. Had the offenses committed at Abu Ghraib and Camp Bucca been directed by Eaton 15 the CIA, that may well have been sufficient evidence to denounce the Enhanced Interrogation

Program. However, there is not any substantial evidence that suggests this was the case. Even

Taguba, a prominent critic of the EIP, was unable to find evidence of any higher command issuing the mistreatment of prisoners at Abu Ghraib or Camp Bucca. In the conclusion of his investigation, he communicates who he believes to be responsible for the actions at these two prisons. The report states:

Several US Army Soldiers have committed egregious acts and grave breaches of

international law at Abu Ghraib/BCCF and Camp Bucca, Iraq. Furthermore, key

senior leaders in both the 800th MP Brigade and the 205th MI Brigade failed to

comply with established regulations, policies, and command directives in

preventing detainee abuses at Abu Ghraib (BCCF) and at Camp Bucca during the

period August 2003 to February 2004 (Article 15-6 Investigation of the 800th

Military Police Brigade, 50).

Note that Taguba makes no mention of the CIA or Bush administration being at fault for the brutalities that occurred at Abu Ghraib.

The Abu Ghraib scandal is a stain on our military, but it is merely a result of the actions of a few cruel and irresponsible men and women. It is not an indictment of the military or government as a whole and it is by no means an indictment of the Enhanced Interrogation

Program. As John Yoo puts it, “No one condones the abuses witnessed in the Abu Ghurayb

[alternate spelling] photos that are being properly handled through the military justice system.

But those abuses had nothing to do with the memos defining torture…” (Yoo, Commentary).

Nowhere in the interrogation report was language used that would justify the use of cruel, Eaton 16 unsanctioned interrogation techniques on prisoners. Additionally, the abuses made famous by the photographs were not even performed as part of interrogations. The crimes committed as

Abu Ghraib were personal abuses that were not performed within standard interrogation settings.

There is no interpretation of the EIP that would have caused soldiers to think that by performing unsanctioned interrogation techniques outside of a proper interrogation setting, they were following orders. George R. Mastroianni, a professor of psychology at the U.S. Air Force

Academy in Colorado Springs mentions some of these ideas in an article in which he thoroughly analyzes the Abu Ghraib incident. He concludes, "Not only did the abuses made famous by the

Abu Ghraib photographs occur outside interrogations, but the particular bizarre and highly sexualized abuses shown in the photographs are not known to have been used elsewhere and were not on the list of enhanced techniques brought by Major General Miller to Iraq" (Caton 57).

Mastroianni makes it clear that the actions taken at Abu Ghraib were in no way an interpretation of the laws put in place regarding proper interrogation practices. On the contrary, they were in complete violation of the established regulations.

It is also important to note that those responsible for these crimes have been prosecuted.

Eleven men and women received varying degrees of punishments for their actions (Iraq Prison

Abuse Scandal Fast Facts). Those who performed the most heinous actions were all given prison sentences up to 10 years and were either demoted or discharged from the U.S. Military (Iraq

Prison Abuse Scandal Fast Facts). Additionally, several high ranking officials were given fines or demoted, not for committing the crimes, but for allowing them to occur under their watch (Iraq

Prison Abuse Scandal Fast Facts). Finally, the government in no way defended the guilty parties and instead expressed embarrassment about the entire incident. George Bush met with Jordan's Eaton 17

King Abdullah to personally apologize for the events that took place at Abu Ghraib. In reference to this meeting Bush stated, "I told him I was sorry for the humiliation suffered by the Iraqi prisoners and the humiliation suffered by their families" (Bush Apologizes for Iraqi Prisoner

Abuse). This humble apology, in combination with the fact that punishments were handed out to everyone involved, shows that the U.S. government took the incident very seriously and did everything in its power to mend the wounds created by the scandal. In summary, the crimes of

Abu Ghraib were horrendous, but they represented a small group of rebels who had no regard for the laws of war and interrogation put into place. Using Abu Ghraib as an argument is not sufficient in undermining the legality of the Enhanced Interrogation Program because the crimes of Abu Ghraib do not have any bearing on the interrogation laws themselves.

At this point it is important to make clear the reality that there are many uncertainties to the narrative of the EIP. For example, in Feinstein’s controversial report she accuses high ranking officials of perpetrating the deaths of several detainees. However, there is no factual evidence for this claim. In fact, much of Feinstein’s report has been rendered useless because of its partisan nature. On this issue, John Yoo comments that, “The Senate Intelligence Committee took the unprecedented step of proceeding without Republicans even though previous investigations have always been bipartisan. It cherry-picked from millions of CIA documents and, unbelievably, refused to interview any witnesses” (Yoo, Dianne Feinstein's Flawed Torture

Report). Given the political nature of an issue of this sensitivity, how could an investigation be considered credible without involving a single member of the Republican party? It is even more alarming that the report did not include any interviews from CIA officials. This decision to proceed without interviewing any witnesses is what prompted Republicans to decline to be a part Eaton 18 of the investigation, and rightfully so. There is clearly something wrong when even John Yoo, one of the men who drafted the Enhanced Interrogation memos, was not asked to testify. Yoo said, "This committee, the Feinstein committee, chose not to interview anybody. They did not interview any of the government officials including myself. Didn't even call, didn't even ask me.

I would've been happy to testify" (Hoffmann). All of this is to say that "factual" evidence regarding the EIP cannot simply be taken at face value. Consequentially, for the purposes of this paper, the most universally accepted information has been cited because of the uncertainty of many of these claims. This is why Abu Ghraib was given such extensive analysis in this paper.

Abu Ghraib was an event grounded in factual information. The same cannot be confidently stated about claims such as the one made about two detainee deaths. Those are grounded in unreliable, partisan reports such as the one released by Dianne Feinstein.

With this is mind, it is important to consider an official investigation conducted by the

Justice Department into the deaths of two prisoners under the Enhanced Interrogation Program.

The investigation was led by John Durham, Assistant U.S. Attorney at the time, as well as

Attorney General Eric Holder. Holder has openly expressed his criticism of the Bush administration on numerous occasions, so it seemed possible that this would be a factor in the outcome of the investigation. However, this was not the case. The investigation resulted in no charges against George Bush or any member of his administration. The Attorney General

Statement on the matter reads as follows: “Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt” (Statement of Attorney General Eric Holder on Closure of Investigation into the Eaton 19

Interrogation of Certain Detainees). This conclusion justifies skepticism about the validity of

Diane Feinstein’s “torture report” and gives closure to the argument that Enhanced Interrogation did not violate any National or International law. However, the legality of the Enhanced

Interrogation Program does not entirely justify its use. A second point of contention is whether

Enhanced Interrogation was effective in extracting useful information from prisoners. This point is essential in determining whether or not it was the right decision to implement the program.

The best way to examine the effectiveness of the EIP is to begin with some context. It is necessary to return to the ghastly image of 9/11 and the horror that it caused. It is this historical context that caused politicians at the time to approve the Enhanced Interrogation Program in the first place. They did so in part out of concern that there would be future attacks on American soil. In fact, almost everyone during that period of time thought that another attack in the near future was a certainty. Yoo notes this when he states, “…the Bush and Obama administrations have so far prevented another massive al Qaeda attack on the U.S. homeland. Any terrorism expert inside or outside of government in Fall, 2001 would have been astounded at this result in light of American Society and al Qaeda’s track record” (Yoo, The Feinstein Report). Given the fact that there has not been another terrorist attack on U.S. soil, it seems that the policies put in place by the Bush administration have been exceedingly successful. The primary program established to prevent future terrorist attacks was the EIP. It appears clear that the program has been a very effective tool in preventing terrorist attacks and saving American lives. However, critics still find ways to disagree. They ground this belief in the argument that even if the EIP did produce intelligence, the same intelligence would have been produced without the new Eaton 20 interrogation techniques. They often go so far as to say that the EIP did not produce any useful intelligence, period. These arguments are both ineffective.

Advocating for the argument that Enhanced Interrogation was ineffective because it did not produce any information that standard interrogation techniques would not have is similar to concluding that the Civil War was ineffective because slavery would have eventually ended anyway. Of course, such a statement is ridiculous because it relies on vague possibilities to try to discount a monumental moment in securing human rights. In terms of preventing terrorists attacks, Enhanced Interrogation accomplished something incredible. Certainly it is possible that the same thing would have happened without initiating the program, but it is very unlikely, especially when considering why the Enhanced Interrogation was introduced in the first place. If standard interrogation procedures had been as effective as Feinstein and others indicate, there would have been no need to institute harsher interrogation techniques. These new techniques were instituted exactly for the purpose of improving on the previous techniques which had not been exceedingly effective. Additionally, enhanced interrogation certainly was a far quicker means of gaining information considering that the alternative was to establish trust with a detainee. This could take months, even years. Which is better? The efficient program that proved to be successful or the slow one that could possibly, but not certainly, be effective?

Obviously, the answer is clear and renders this first argument baseless. The discussion really lies in the second question. It is critical to determine if the Enhanced Interrogation Program did produce accurate information or whether the absence of terrorist attacks can be attributed to previous intel or mere coincidence. Eaton 21

One of the reasons critics insist that the EIP was ineffective is that they fail to understand the true nature of the new techniques. For example, critics state that Enhanced Interrogation produces false confessions because prisoners will say anything to make the interrogation session stop. Dianne Feinstein makes this point in her report. She concludes that, "The methods in question... regularly resulted in fabricated information. During the brutal interrogations the CIA was often unaware the information was fabricated, leading CIA officers or contractors to falsely conclude that they were acquiring unique or actionable intelligence when they were not" (Senate

Intelligence Committee Study on CIA Detention and Interrogation Program). However, this simply shows a lack of understanding regarding the way interrogators went about extracting information. Marc Thiessen, a writer for , brilliantly illustrates this by stating that:

Enhanced techniques were never used to gain intelligence. They were used to gain

cooperation. They were used to move terrorists like KSM [Khalid Sheikh

Mohammed] from a state of resistance to a state of compliance. To gauge whether

terrorists had made the decision to stop resisting and start cooperating,

interrogators asked the terrorists questions to which they already knew the

answers. In other words, there is no way a terrorist can lie to get the techniques to

stop. The only way to stop the techniques is to tell the truth. And once terrorists

began telling the truth, the techniques stopped and traditional debriefing

techniques were employed (Thiessen).

In other words, Enhanced Interrogation sessions were used to instill fear into detainees in order to gain compliance. They were not used to immediately yield confessions. Ultimately, lying was Eaton 22 very rare in the end because interrogators knew the answers to the questions and once the detainee had reached a breaking point, he would give up invaluable information using standard techniques. Of course, false confessions are certainly still possible but given the understanding of the interrogation techniques highlighted above, they are not nearly as common as many imply.

This is made apparent by the wealth of knowledge Enhanced Interrogation has provided towards thwarting terrorist plots and weakening Al Qaeda. This is another area where critics simply fail to fully review the facts.

The primary area of misunderstanding relates to the utility of the EIP in capturing Osama

Bin Laden. Dianne Feinstein’s report attempted to shoot down any notion that information regarding Bin Laden had been gained through Enhanced Interrogation. The report argues that any useful intelligence gleaned from Al Qaida fundraiser Hassan Ghul in regards to Bin Laden’s courier, who eventually led the United States to Bin Laden, was obtained before Ghul was subjected to Enhanced Interrogation. However, John Yoo and other CIA officials tell a different narrative. According to Yoo, “…the CIA’s rebuttal — signed by Obama’s appointee Director

John Brennan — makes clear this information ‘was insufficient to distinguish him from many other Bin Laden associates until additional information from detainees put it into context and allowed CIA to better understand his true role and potential in the hunt for Bin Laden” (Yoo, A

Torture Report for the Dustbin). Yoo is noting that, although the name of Bin Laden’s courier was known prior to the use of Enhanced Interrogation, it was simply a name among hundreds if not thousands of other terror suspects. What pinpointed the courier out of all of those names was the use of Enhanced Interrogation techniques. Eaton 23

Of course, it would be imprudent to simply subscribe to John Yoo’s narrative over

Feinstein’s. However, it is compelling that Yoo’s conclusion was reached with the help of

Obama’s appointee Director John Brennan and the support of the CIA. Additionally, it seems highly unlikely that the CIA would use Enhanced Interrogation if they had already been given the identity of the courier from standard interrogation techniques. What would be the use of further interrogation? Yoo’s narrative is certainly more compelling and seems to be much more cohesive. Additionally, he cites a bipartisan source, a CIA rebuttal signed by a member of the

Obama administration. On the other hand, Feinstein’s report is completely partisan and does not include a single witness interview.

Enhanced Interrogation also provided information that helped to prevent future terrorist attacks. Again, this is a very controversial topic as many of the facts surrounding it are disputed.

For example, Dianne Feinstein's report concluded that, “At no time did the CIA’s coercive interrogation techniques lead to the collection of imminent threat intelligence, such as the hypothetical ‘ticking time bomb’ information that many believe was the justification for the use of these techniques" (Volsky). However, former CIA Directors George J. Tenet, Porter J. Goss, and Michael V. Hayden, as well as former CIA deputy directors John E. Mclaughlin, Albert M.

Calland, and Stephen R. Kappes tell a much different story in their article labeling Feinstein's torture report as deeply flawed. According to these former officials, the program led to valuable information in capturing the brother of Hambali, East Asia's chief Al Qaida ally who was responsible for a bombing in Indonesia that killed 200 people (CIA Interrogations Saved Lives).

Hambali's brother led the CIA to the takedown of a 17-member Southeast Asian cell recruited for a "second wave" attack on the U.S. West Coast (CIA Interrogations Saved Lives). They also Eaton 24 attest to the program capturing numerous Al Qaida operatives, saving countless lives by ending the plotting of these terror masterminds (CIA Interrogations Saved Lives). It is nearly indisputable that the former CIA members are an extremely reliable source. To trust a cherry picked, partisan report that failed to interview a single member of the CIA over the testimonies of six high ranking CIA officials, who were privy to real CIA reports and documents, would be very ill-advised, to say the least.

Additionally, recent reports have surfaced of other terrorist attacks being thwarted by the

Enhanced Interrogation Program. One example is the 2004 capture of Dhiren Barot, Al Qaida's top British terrorist, who was found guilty of planning to plant a in London. New information has indicated that intelligence provided by Guantanamo Bay detainee Moazzam

Begg provided the CIA with the necessary intel to capture Barot. The report "claims that drawings by Mr Begg – who claims to have been beaten and deprived of sleep in Guantanamo

Bay – helped lead British security services to Barot, who had gone to ground in

London" (Mctague). The article referencing the report goes on to say that "The revelation will prove highly controversial as it appears to contradict the findings of the Senate's intelligence committee report which found that the CIA's 'enhanced interrogation techniques' did not yield information crucial in stopping terror attacks" (Mctague). Clearly, there is enough information to suggest that, at the very least, a few major terrorist threats have been neutralized, due in part to the implementation of Enhanced Interrogation. This is certainly enough to warrant its use.

It is apparent that there is sufficient evidence from reliable sources that shows numerous instances where Enhanced Interrogation has been successful. Although some of this information is difficult to completely validate given the existence of alternative narratives in Feinstein's Eaton 25

"torture report", it is evident that Feinstein's report is far less reliable as a source given its partisan, agenda driven nature. The fact that, against all odds, no terrorist attacks have occurred since September 2001, further illustrates the effectiveness of the Enhanced Interrogation

Program. Feinstein can dispute that the EIP led to the takedown of terrorist targets by telling tales of her own, but she cannot dispute the fact that Enhanced Interrogation has been effective in accomplishing its sole purpose; it has prevented additional loss of American lives as a result of a terrorist attack. However, effectiveness and legality can all be rendered moot if the program at hand is immoral. This is the final and most important question to ask.

What would you do if given the chance, however remote, to save American lives? Would you be willing to harm someone who perpetrated the deaths of Americans in order to save hundreds or thousands of lives? Which is the greater moral sin? Is it to engage in some uncomfortable, maybe even distasteful acts in order to save lives? Or is the greater evil to fail to take every necessary action to protect those in danger? These questions are pivotal to the moral discussion surrounding the debate over Enhanced Interrogation. It seems that, given a circumstance in which engaging in these techniques would undoubtedly save lives, it would be a great crime not to use them. There are not many individuals who would argue otherwise. Would anyone really jeopardize the lives of thousands of innocent people to prevent the discomfort of one criminal? No critic has been willing to go this far. So, the question is whether in the aftermath of 9/11, a situation of this magnitude arose.

Was the post 9/11 terrorism threat akin to a true "ticking bomb situation," a scenario often discussed in the debate over interrogation? The "ticking bomb situation" is thoroughly described by the Association for the Prevention of Torture. According to this organization, "this scenario Eaton 26 typically involves the police capturing a terrorist, suspected for having placed a bomb that is about to explode in the middle of a large city. The police believe that only torture will make the suspect disclose the information needed to prevent the deaths of thousands of people. Is it not justified to use torture in such a case?" (The Ticking Bomb Scenario). Of course, this definition uses the term torture instead of interrogation. The use of torture in a situation like this is a separate issue. For the purposes of this paper, the focus will be on the use of Enhanced

Interrogation in such a scenario. Earlier in the paper, Enhanced Interrogation was proven as not tantamount to torture because none of the authorized techniques delivered pain constituting torture according to the definition provided by the Justice Department.

In answering the question of whether the post 9/11 chaos was a true ticking bomb situation, it is important to consult some expert opinions. The six CIA officials referenced earlier in the paper seem to think that it was a ticking bomb situation. They state that, "It felt like the classic 'ticking bomb scenario'- every single day" (CIA Interrogations Saved Lives). According to the CIA officials, it felt this way because in the aftermath of 9/11 and after the deaths of close to 3,000 people, the CIA had "Evidence that al Qaeda was planning a second wave of attacks on the U.S.", "Certain knowledge that Osama bin Laden had met with Pakistani nuclear scientists and wanted nuclear weapons", "Reports that nuclear weapons were being smuggled into New

York City", and "Hard evidence that al Qaeda was trying to manufacture anthrax" (CIA

Interrogations Saved Lives). If these assertions are true, it seems the CIA was faced with a situation very similar to a ticking bomb scenario. The validity of this source has already been confirmed. Therefore, this is a very compelling analysis of the situation the United States was faced with following the chaos of 9/11. Many threats appeared to be very real and were backed Eaton 27 up by real intelligence. Further, many of these threats did prove to be legitimate, such as the plotting of Dhiren Barot, the London terrorist referenced earlier in the paper. In such a scenario, the obligation to save American lives trumps everything. It would be immoral not to resort to

Enhanced Interrogation as a means of providing protection for the American people. Mirko

Bagaric, an online writer, seems to agree. He suggests that:

The reason that torture in such a case is defensible and necessary is because the

justification manifests from the closest thing we have to an inviolable right: the

right to self-defense, which of course extends to the defense of another. Given the

choice between inflicting a relatively small level of harm on a wrongdoer and

saving an innocent person, it is verging on moral indecency to prefer the interests

of the wrongdoer (Bagaric).

Again, this paper does not address the use of torture in a ticking bomb situation, but Bagaric's logic can also be applied to the implementation of Enhanced Interrogation in such a situation, perhaps even more so. Bagaric makes a very good point that in a ticking bomb situation the right to defend the American people becomes more important than anything else. When applied to America's use of the EIP, this remains true. It would be morally indecent to discard the rights of innocent Americans to live in safety in order to ensure the comfort of a prisoner. It is also important to consider that only three prisoners were waterboarded in the entirety of the program.

Clearly, the CIA realized the gravity of waterboarding and its implications because they used the technique very sparingly. However, they also realized that in certain situations the importance of protecting the lives of the American people was paramount. To dispute this decision would be to cheapen the value of human life. Eaton 28

It is very possible that this analysis is not enough to sway a critic of the EIP. However, critics: what do you propose as an alternative? The threat of terrorism is still very real, and it is clear that some measures must be taken to protect Americans. If Enhanced Interrogation is not the tool for ensuring safety, what is? When President Obama took office he realized that as

Enhanced Interrogation became illegal, he would need to answer this question. His alternative, the only real alternative that has been presented to date, is morally problematic. President

Obama has elected to end terrorist threats before they even present themselves by issuing drone strikes on terrorist suspects. A 2014 article brought some statistics to light regarding Obama's drone program. According to the article, "The U.S. drone program under President Barack

Obama reached its fifth anniversary on Thursday having tallied up an estimated death toll of at least 2,400 people" (Sledge). Where is the outcry against the harsh justice administered with finality by Obama and his drone program? Certainly the killings of 2,400 people raises greater moral questions than the subjection of 3 detainees to waterboarding. Detractors of the program fail to see this because they are so caught up in their irrational criticism of Enhanced

Interrogation. They are not comfortable with the idea of an interrogator implementing techniques face to face with a detainee. The impersonal nature of drone strikes is far less troubling to them. Adhering to this logic is to completely ignore rationality and morality. Of course, there is no scenario in which causing discomfort is a greater crime than perpetrating death. Additionally, the number of detainees subjected to the EIP is far less than those killed by drone strikes. Sam Harris, a writer for the Huffington post, puts it this way:

Again, which is worse: water-boarding a terrorist or killing/maiming him?...

There are journalists who have volunteered to be water-boarded. Where are the Eaton 29

journalists who have volunteered to have a 5000-pound bomb dropped on their

homes with their families inside? (Harris).

Harris brilliantly illustrates the moral gravity of drone strikes, the primary alternative to the EIP.

However, there is even more to the story.

President Obama's alternative to Enhanced Interrogation has not only caused the deaths of 2,400 people, it has taken the lives of countless innocents. According to the same article detailing the statistics of drone strikes:

Human Rights Watch and issued a pair of reports in

October fiercely criticizing the secrecy that shrouds the administration's drone

program, and calling for investigations into the deaths of drone victims with no

apparent connection to terrorism. In alone, TBIJ [The Bureau of

Investigative Journalism] estimates, between 416 and 951 civilians, including 168

to 200 children, have been killed (Sledge).

Clearly, the collateral damage that has resulted from this alternative to Enhanced Interrogation is staggering. It would be blatantly immoral to deem the waterboarding of 3 men a greater crime than the killings of hundreds of innocent children. Yet, shockingly, critics still continue to disparage Enhanced Interrogation without making any mention of the immorality of the drone program, the primary alternative to the EIP. This is alarming. However, given this, critics can still argue that Enhanced Interrogation was a grave mistake because it opened the door for far greater atrocities to be committed as people became comfortable with waterboarding prisoners.

This can be termed the "slippery slope argument." Eaton 30

The slippery slope argument is another key argument to address. The idea is that the

EIP, as it was, was not all that bad. However, allowing some questionable interrogation techniques would eventually lead to full blown torture. Ultimately, the slippery slope argument is weak because it can applied to nearly every situation. Should police officers not be allowed to make arrests? Will giving them this power eventually lead them to arrest anyone and everyone simply because they can? Of course, the answer is no. Perhaps a better example would be the implementation of capital punishment. Sam Harris touches on this when he states that "Although

I think that torture should remain illegal, it is not clear that having a torture provision in our laws would create as slippery a slope as many people imagine. We have a capital punishment provision, but it has not led to our killing prisoners at random because we can't control ourselves" (Harris). He goes on to say that, "While I am strongly opposed to capital punishment,

I can readily concede that our executing about five people every month hasn't led to total moral chaos. Perhaps a rule regarding torture could be applied with equal restraint" (Harris). While the subject of legislating torture is a separate issue, Harris' point can also be applied to the Enhanced

Interrogation Program. With clear regulation and responsible personnel, there is no reason to believe that the EIP would have descended into any sort of moral free-for-all, as advocates of the slippery slope argument claim. Ultimately, the slippery slope argument is weak because it does not have any basis in logic or practice.

Finally, the Enhanced Interrogation Program, while not perfect, was significantly better than any proposed alternative in effectively protecting the American people and securing the rights of every citizen. The program did so while also complying with the law and established codes of conduct. Hindsight is 20/20; when reviewing the legacy of the Enhanced Interrogation Eaton 31

Program it is important to admit some imperfections even if they are only tangentially related, such as the failure to prevent the atrocities committed at Abu Ghraib. Still, the decision to proceed with Enhanced Interrogation was morally right as well as necessary to ensure the safety of the American people. Those who made that decision did so with full knowledge of its moral complexity. Yet, there is no doubt that, given a second chance, they would not hesitate to do it all over again.

Eaton 32

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