Tortured Justice

Who's winning, who's losing, and why.
Oct. 24 2001 5:09 PM

Tortured Justice

There are ugly ways to extract information from suspects. What are the legal limits?

The best strategy in fighting terrorism, some say, is to "disrupt" the groups and cells planning future missions. One way of doing that, already practiced by the United States, is to farm out torture assignments to countries such as Egypt, Jordan, or Saudi Arabia, where they have no compunctions about extracting information from sources with violence or by threatening their family members.

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The fact that the United States avails itself of the fruits of foreign torture is legally and morally problematic. But the truth about torture is more troubling still. Although U.S. and international law prohibit the use of torture to obtain information, the United States has tortured suspected spies here at home and coached other nations on the best techniques for doing it too. What is the legality of the U.S. approach? Can it contract out its torturing to foreign nations? Can it torture suspects—even just a little—if they have information about imminent attacks or anthrax sources that could save thousands of American lives?

As a legal matter, the issue of "torture" is only invoked in U.S. courts after the fact, when: 1) the prosecution introduces evidence resulting from interrogations into evidence (as the now-convicted African embassy bombers did during their trial last year); or 2) the suspect sues later for civil rights violations (as Abner Louima did in 1997). Thus, the question of whether or not torture is "legal" is one issue. The answer is: It isn't. The more relevant question is whether U.S. courts would admit evidence procured via torture (it might) or prosecute an American for torture (it might).

There's no doubt that torturing terrorists and their associates for information works. In 1995, Philippine intelligence agents tortured Abdul Hakim Murad, whom they arrested after he blew up his apartment making bombs. The agents threw a chair at Murad's head, broke his ribs, forced water into his mouth, and put cigarettes out on his genitals, but Murad didn't talk until agents masquerading as the Mossad threatened to take him back to Israel for some real questioning. Murad named names. His confession included details of a plot to kill Pope John Paul II, as well as plots to crash 11 U.S. airliners into the ocean and to fly an airplane into the CIA headquarters in Langley, Va. His co-conspirator Ramzi Yousef was later convicted for the 1993 World Trade Center bombing. Similarly unappealing methods helped the CIA uncover the millennium bomb plot of 1999, after al-Qaida terrorists were questioned in Egypt and Jordan.

[Update Oct. 23, 2001: In stating that the millennium bomb plotters were tortured prior to divulging the plot, I am guilty of over-reading an Oct. 15 articleby Walter Pincus in the Washington Post. Pincus writes, "The CIA worked with Jordanian, Egyptian, Canadian and Pakistani services, picking up terrorists, some associated with al Qaeda, and moving them to either Jordan or Egypt" and that information from those sources disrupted the bombings. While Pincus did not report, and we cannot know, whether those terrorists were tortured in Egypt and Jordan, he states two paragraphs down that many foreign countries use torture and threats to family members in interrogations. Egypt and Jordan are two of the best-known users of torture in interrogations. Nevertheless, the millennium terrorists questioned there in 1999 may well have been interrogated with full regard for their personal and constitutional rights.]  

The CIA has always known that torture works. According to declassified
CIA interrogation manuals, the CIA has taught others how it's done, in Nicaragua, Guatemala, and other Latin American countries. The manuals refer to using "deprivation of sensory stimuli," "threats and fear," "food and sleep deprivation," and pain to extract information. The most famous case of CIA use of domestic torture was that of Yuri Nosenko, a former KGB agent who defected to the United States in 1964. Believing he was a Soviet spy, the CIA kept Nosenko in solitary confinement for more than three years in a 10-foot-square concrete cell. He was, for long periods of time, denied food, sunlight, reading materials, and human contact. He claims to have been given LSD. When he attempted to build toys out of lint, they were confiscated. The CIA freed Nosenko in 1967, finally concluding he was a bona fide defector after all. This episode and government inquiries into similar situations prompted the dismissal of many executives of the counterintelligence department in the 1970s.

A more recent case of CIA-sanctioned torture involved Efrain Bamaca Velasquez, a Guatemalan revolutionary. His widow, Jennifer Harbury, alleges in a lawsuit that the agency financed and indirectly participated in efforts to torture information out of him, leading ultimately to his death in the early 1990s. She also alleges that the Guatemalans who tortured her husband were paid by the CIA and that two had been trained in torture and interrogation techniques at the U.S. Army's
School of the Americas. Last January, in Harbury v. Deutch, the D.C. Circuit Court of Appeals found that the torture had not violated Bamaca's Fifth Amendment due process rights. Prior case law holds that noncitizens' rights are violated only in cases of: 1) physical presence in the United States at the time; 2) their mistreatment in a country where the United States exercises de facto political control; or 3) abuse in the course of abduction for trial in an American court. The D.C. Circuit relied heavily on a Supreme Court case, U.S. v. Verdugo-Urquidez(1990), holding that evidence found during an illegal Fourth Amendment search of a nonresident alien's property in a foreign country was admissible at trial in the United States.

Given this precedent, it's difficult to imagine a Bin Laden associate who's been tortured abroad prevailing in a claim that he was tortured for information, so long as he's not a citizen. It also means we can probably use that information in a U.S. trial. The defendants in the African embassy bombing trials, heard last year in New York City, met with a similar fate. They claimed that during the investigation the FBI threatened to turn them over to the brutal Kenyan authorities if they didn't cooperate with U.S. prosecutors. Confessions were made. The court, finding no evidence that the defendants had actually been mistreated, allowed the evidence to come in.

The rights of U.S. citizens are more significant than the rights of noncitizens or nonresident aliens. The
Eighth Amendment proscribes "cruel and unusual" punishment outright, and the case law ( Rochin v. California) establishes that it's a Fifth Amendment violation to do anything to procure evidence that "shocks the conscience." In U.S. courts, the general rule of evidence bars confessions obtained through "oppression" (defined generally as "torture, inhuman or degrading treatment and the use of or threat of violence"). International law also forbids the use of torture, most notably in the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

What about the possibility of sending suspects and material witnesses to other countries for interrogation? It worked to foil the millennium bombing plot. We probably can't ask the Egyptians to torture them, but we would certainly benefit from information gained if they did. The 700 detainees aren't being tortured here, but they aren't being treated very nice. They have been held over a month without charges, many in solitary confinement in 8-by-10-foot cells. Some report being deprived of toothbrushes, showers, and warm clothing. They have limited contact with attorneys and none with their families. The material witness statute allows them to be held only "a reasonable amount of time," and it's clear that many of these detentions are not reasonable. It's approaching Nosenko treatment, and in a few weeks it really will "shock the conscience." Among those 700 individuals are Zacarias Moussaoui and Nabil al-Marabh. (Moussaoui is the Moroccan who wanted to learn how to steer a jetliner but wasn't interested in takeoffs or landings. Al-Marabh allegedly had ties to at least two of the New York hijackers and was involved in transferring money for the foiled millennium plot in 1999.) And the United States has already convicted Bin Laden follower Ramzi Yousef for the 1993 World Trade Center bombing. Yousef has reportedly refused to speak since Sept. 11. Still, it's clear that these detainees are not being beaten, drugged, or subjected to pain per the CIA torture manuals.

According to Professor Robert Turner at the Center for National Security Law at the University of Virginia, there is no legal or moral justification for beating information out of suspects. Within the confines of the United States, torture is not a legal option, even if you knew an individual had the code to stop a nuclear bomb, although that hypothetical is a close call, according to Turner. This "ticking time bomb" exception was held illegal by the Israeli Supreme Court, who recently outlawed the use of "moderate physical force," even when suspects could offer information about imminent attacks. Whether or not it's "legal," torture still happens in Israel. And it's easy to imagine any U.S. cop turning into Dirty Harry if he knew that tens of thousands of lives were on the line. He'd be more than willing to answer for it later, while they're pinning the medal on his chest.

Some of the 700 detainees have vital information about Osama Bin Ladin and al-Qaida, and unless the president plans to suspend the right to habeas corpus, as Abraham Lincoln did, his options will become increasingly unattractive. He can release them, along with all the secrets they harbor. He can deport them or extradite them to places like Saudi Arabia and Egypt, where they may well be subject to torture and abuse. Or he can stick with our current plan, which appears to be confined to the soft bigotry of indefinite confinement. That will, at some point, amount to torture in its own right. Fortunately, the Supreme Court once found that the indefinite internment of
U.S. citizens of Japanese descent, on the basis of nothing but their race, was not torture; it wasn't even racial discrimination. No doubt they will accommodate the Justice Department this time around as well.

Dahlia Lithwick writes about the courts and the law for Slate

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