Straw Men

Straw Men

Slate's blog on legal issues.
April 6 2008 8:20 PM

Straw Men

In an earlier post , I wrote that there was really no difficult question with respect to prescribing CIA interrogation techniques—that the agency could, for instance, simply be required to abide by the same Army Field Manual rules that govern the military, rules that are more generous than those that have governed wartime U.S. interrogations throughout much of our history.

Ben disagrees .  He doesn't really explain why the CIA (which, until recently, wasn't in the business of detention at all) needs more flexibility than the military has historically had. (After all, presumably Ben would agree that if our enemy here were even more dangerous than al-Qaida but were a state actor with an established military command structure (say, like Nazi Germany or the Soviet Union), the Geneva Conventions would prohibit all coercive interrogation. No such limitation is imposed as to al Qaeda detainees—and why isn't that increased flexibility enough, if it's more than we would be entitled to use in a traditional war?)


More specifically, Ben argues that the Army Field Manual is too restrictive for the CIA because the Army "rejected almost all of the new techniques that Donald Rumsfeld earlier approved for use at Guantanamo." I don't think that's right. The Field Manual includes almost all of the techniques Rumsfeld had (nominally) approved for GTMO in his April 16, 2003 memo . (In fact, Rumsfeld's April 16th memo was a whitewash to deflect attention from the much harsher techniques approved in the Working Group Report—but that's another story.)

Which Rumsfeld techniques does the Field Manual not include?  I might have missed one or two, but I think this is the list:

1.  Removing privileges for uncooperative detainees, and "dietary manipulation," such as the denial of hot rations.

2.  "Change of Scenery Down": placing the detainee in a setting that is less comfortable but that "does not constitute a substantial change in environmental quality."

3.  Environmental Manipulation:  Altering the environment to create moderate discomfort that would be shared by the interrogator, e.g., "adjusting temperature or introducing an unpleasant smell."

4.  Sleep adjustment, such as changing sleep cycles from night to day, but NOT sleep deprivation (caps in original Rumsfeld memo). 

(Some of these techniques might be incorporated in the Field Manual; I haven't done a comprehensive check.)  

I would readily concede that these techniques certainly could be used in a manner that would not violate the legal restrictions against torture and cruel treatment (particularly if safeguards were in place). But does Ben truly think that these techniques are what all the fuss is all about? If that were the case, then the Bush Administration could simply say so—at which point, the Democrats would gladly incorporate them in the legislation for use by the CIA against non-POW detainees. There would be no need for a presidential veto. In other words, if these are the techniques that Ben thinks are so critical for the CIA, then I think he would find a receptive audience on the Hill.

But they are not what the fuss is all about. Instead, the Bush administration wants the CIA to be able to use some or all of the "enhanced interrogation techniques" that it has employed over the past few years, including (reportedly) waterboarding, hypothermia, hyperthermia, stress positions, severe sleep and/or sensory deprivation, and threats against the detainee and his family. Indeed, more than anything else, the Administration wants detainees to think that we might use such techniques (or worse)—an implied threat that the CIA is working in a law-free zone.

These (or some subset of them) are the techniques that precipitated the presidential veto. In my view, they're all illegal—they are all either cruel or torture or both (and perhaps violations of other statutes as well). Do you disagree, Ben?

Marty Lederman teaches constitutional law at the Georgetown University Law Center. He was deputy assistant attorney general in the Department of Justice's Office of Legal Counsel 2009-10 and an attorney advisor in OLC 1994-2002. He has been a regular contributor to several legal blogs, including Just Security, Balkinization, and SCOTUSblog.

  Slate Plus
Aug. 3 2015 11:48 AM Behind the Year of Outrage  Here’s how Slate tracked down everything we were angry about in 2014. 
  Health & Science
Bad Astronomy
Aug. 4 2015 7:00 AM Mike Huckabee: Exactly Wrong about Global Warming