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Enhanced Interrogation Techniques and the Risk of Criminality

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Enhanced Interrogation Techniques and the Risk of Criminality LEAVE NO MARKS ENHANCED INTERROGATION TECHNIQUES AND THE RISK OF CRIMINALITY August 2007 © 2007, Physicians for Human Rights and Human Rights First. All rights reserved. ISBN: 1-879707-53-5 Design: Glenn Ruga/Visual Communications Physicians for human rights AND human rights first his report is the product of collaboration between For nearly 30 years, Human Rights First has been a Physicians for Human Rights (PHR) and Human leader in the fight against torture and other forms of official TRights First (HRF), two non-governmental orga- cruelty. HRF was instrumental in proposing, drafting and nizations with extensive experience in research, anal- campaigning for the Torture Victims Protection Act (TVPA) ysis, and advocacy directed toward ending torture and and played an active role in pressing for U.S. ratification of defending human dignity. the Convention Against Torture and other forms of Cruel, Physicians for Human Rights draws on the expertise Inhuman or Degrading Treatment or Punishment, and for of health professionals and analysts who are experts the adoption of a 1994 federal statute that makes torture on the physical and psychological effects of torture and a felony. As part of its End Torture Now Campaign, HRF medical ethics. led a successful effort to support passage of the McCain Human Rights First marshals the legal expertise of Amendment in 2005 banning cruel, inhuman, or degrading specialists familiar with the relevant case law and legal treatment by U.S. personnel of all detainees in U.S. custody history. anywhere. In response to the Administration’s proposal on Both Human Rights First and Physicians for Human the Military Commissions Act of 2006, HRF organized retired Rights have been on the forefront of the fight against military leaders who urged the U.S. Senate to reject a provi- torture for decades. sion of the Act that would have downgraded the Geneva Physicians for Human Rights has a 20-year track Conventions’ standards for humane treatment. record of documenting torture around the world, including Human Rights First has published a number of reports in Turkey, Chile, Chechnya, Kosovo, Israel, Chiapas, and on U.S. detention and interrogation policies and prac- Mexico. PHR was one of the lead authors of the Istanbul tices, including Behind the Wire (2005), an update of HRF’s Protocol on documenting torture, adopted by the United 2004 report Ending Secret Detentions, which assessed Nations in 1999. In 2005, PHR produced a report titled the nature and scope of the United States’ worldwide Break Them Down, the first comprehensive review of the detention system and how this system facilitated abuse of systematic use of psychological torture by U.S. forces. detainees, and Command’s Responsibility: Detainee Deaths PHR has extensive expertise in evaluating survivors of in U.S. Custody in Iraq and Afghanistan, a study of the gaps torture as well as experience with prisoner health issues. in U.S. government investigations into, and accountability PHR has successfully organized and mobilized thousands for torture and abuse. of health professionals and helped to secure the lead- ership of the major health professional associations to Physicians for Human Rights develop ethical guidelines related to interrogation that Washington Office protect against the misuse of medicine and science in 1156 15th Street, Suite 1001 the abuse of prisoners. PHR’s work, including the US Washington, DC 20005-1705 Health Professionals’ Call to Prevent Torture and Abuse Tel. (202) 728.5335 of Detainees in U.S. Custody that was signed by more www.physiciansforhumanrights.org than 1200 health professionals nationwide, contributed to the adoption of ethical standards by the American Human Rights First Medical Association, the World Medical Association, and Washington Office the American Psychiatric Association prohibiting direct 100 Maryland Avenue, NE participation of physicians in interrogations. PHR has Suite 500 also provided support and guidance to a growing move- Washington, DC 20002-5625 ment of concerned psychologists for similar standards Tel: (202) 547.5692 for the American Psychological Association. www.humanrightsfirst.org iii iv contents GlossaryandListofAcronyms AppendixA:IntroductiontoU.S.Lawon Document Glossary. .vi TortureandCruelTreatment Medical Glossary. viii Torture Convention Implementation Act List of Acronyms . viii of 1994 (the Torture Act). 37 Acknowledgements . ix Torture Victims Protection Act of 1991 and the Foreign Sovereign Immunities Act I.ExecutiveSummary. 1 of 1976. 37 II.Introduction. .5 U.S. Immigration Regulations. 38 War Crimes Act . 38 III.TheEnhancedInterrogationMethods “Torture” under the WCA. 39 1. Stress Positions . 9 “Cruel or Inhuman Treatment” 2. Beating. 12 under the WCA. 39 3. Temperature Manipulation. 15 Culpability Requirement . 39 4. Waterboarding . 17 Detainee Treatment Act of 2005. 40 5. Threats of Harm to Person, Common Article 3 of the Geneva Conventions . 41 Family or Friends . 20 AppendixB:OverviewoftheMedical 6. Sleep Deprivation. 22 ConsequencesofTortureandCruel 7. Sensory Bombardment: Noise and Light . 24 Treatment 8. Violent Shaking . 26 Psychological Trauma 9. Sexual Humiliation. 27 The Common Denominator. 43 10. Prolonged Isolation and Posttraumatic Stress Disorder . 44 Sensory Deprivation. 30 Major Depression and Self-harming IV.ConclusionandRecommendations . 35 Behavior. 45 Damaged Self-concept and Foreshortened Future. 45 Psychosis. 46 Physical Consequences . 46 v glossary anD list of acronyms category applicable to non-U.S. citizens. The MCA narrows Document glossary the War Crimes Act so that it criminalizes only specifically U.S.ArmyFieldManual: U.S. Army Field Manuals are enumerated war crimes referred to as “grave breaches” published by the U.S. Army Publishing Directorate. They of Common Article 3, such as “torture” and “cruel or contain detailed information and how-tos for procedures inhuman treatment.” “Torture” is defined in the MCA as important to U.S. military personnel serving in the field. “an act specifically intended to inflict severe physical or For example, FM 34-52 (superseded by FM 2-22.3) mental pain or suffering (other than pain or suffering inci- provides doctrinal guidance, techniques, and procedures dental to lawful sanctions) upon another person within his that govern collection of human intelligence according custody or physical control for the purpose of obtaining to the army’s needs. Under current law, the Army Field information or a confession, punishment, intimidation, Manual on Intelligence Interrogation (FM 2-22.3) governs coercion, or any reason based on discrimination of any all interrogations by military personnel and all interroga- kind.” “Cruel or inhuman treatment” is defined in the MCA tions by any U.S. personnel in a military facility. as “an act intended to inflict severe or serious physical or CommonArticle3oftheGenevaConventions: An article mental pain or suffering including serious physical abuse, found in all four Geneva Conventions, Common Article upon another within his custody or control.” 3 defines core obligations to be respected in all armed TortureVictimsProtectionActof1991(TVPA): The TVPA conflicts and not just in wars between countries. It prohibits permits civil actions for damages to be brought against indi- violence to life and person including murder, mutilation, viduals who engage in torture or extrajudicial killing. Both cruel treatment and torture, outrages upon personal the TVPA and U.S. immigration regulations use definitions dignity, and in particular humiliating and degrading of torture similar to that in the War Crimes Act and Torture treatment. From 1997-2006, the War Crimes Act (WCA) Act. Court opinions interpreting the TVPA and immigration criminalized all violations of Common Article 3. However, regulations provide guidance on the type of treatment U.S. Congress passed the Military Commissions Act (MCA) in federal courts have found to constitute torture. 2006 which narrowed the WCA so that it now criminal- izes only specific “grave breaches” of Common Article 3, TheForeignSovereignImmunitiesActof1976(FSIA): The including “torture” and “cruel or inhuman treatment.” FSIA limits how foreign governments and governmental entities can be sued in U.S. courts. Generally, a State or TheDetaineeTreatmentActof2005(DTA): Part of the State instrumentality is immune from suit, unless one of Department of Defense Appropriations Act of 2006 (Title the exceptions laid out in the FSIA applies. The FSIA uses X, H.R. 2863), the Act prohibits the “cruel, inhuman, or the TVPA definition of torture to define an exception to the degrading treatment or punishment” (acts that violate the general sovereign immunity provided by the Act. Fifth, Eighth, and Fourteenth Amendments) of detainees and provides for “uniform standards” for interrogation TheTortureAct: (18 U.S.C. §§ 2340 and 2340A) Also (it limits the military to interrogation techniques autho- known by its longer form title, the Torture Convention rized by the Army Field Manual). The Act also removed the Implementation Act of 1994, the Torture Act implements federal courts’ jurisdiction over detainees seeking to chal- the United States’ obligation under the UNCAT to crimi- lenge the legality of their detention, stating that “no court, nalize acts of torture, subject to the United States’ reser- justice or judge shall have jurisdiction to hear or consider” vation that it interprets its obligations in accordance with applications on behalf of Guantanamo detainees. U.S.
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