Why Are SSCI Members Asking So Many Questions about Torture?

By my count, Senate Intelligence Committee members asked CIA General Counsel nominee and Acting OLC Head Caroline Krass 3 questions, plus follow-ups, about torture (these are my summaries):

  • Udall 6: If you learned of a covert action that violated Convention Against Torture but did not violate a particular statute would you advise it was unlawful? Would you inform this committee?
  • Udall 8: If the EO banning torture were overturned, what binding legal authorities would prevent CIA from using techniques authorized by 2007 OLC memo authorizing extended sleep deprivation?
  • Heinrich 1: Can CIA officers participate in torture done by liaison services? If they do would anyone at CIA learn about it?

Granted, these questions come from people who have been particularly concerned about the Senate Torture report. So perhaps they’re just asking to ensure it doesn’t happen again.

But the questions, together, point to several potential loopholes around Obama’s purported ban on torture (even ignoring the way Executive Orders can be pixie dusted).

After all, as far as we know, the September 17, 2001 “Gloves Come Off” Memorandum of Notification remains active. That MON explicitly calls for partnering with countries that torture, both close partnership with Egypt (which was the first country we used to torture detainees), but even countries like Syria.

Then there’s the perennial question — which was the driving question in 2004 and 2005, which led to OLC memos Udall has made clear were based on CIA’s lies — of our compliance with the Convention Against Torture. We seem to have a sustained interest in humiliating detainees. Should we assume we continue to do so?

Finally, Udall’s question about the 2007 OLC memo, with his particular focus on sleep deprivation. As long ago as Faisal Shahzad’s interrogation, there have been suggestions that the High Value Interrogation Group might have found ways to keep detainees awake for extended periods. And while public explanations attributed Abu Anas al-Libi’s abbreviated shipboard interrogation to his own hunger strike, I do wonder whether some kind of coercion wasn’t also involved. Plus, there were claims that the CIA Annex in Benghazi was conducting interrogations. So I would be unsurprised if CIA were using sleep deprivation, again.

Again, perhaps Udall and Heinrich are asking these questions just to measure whether or not Krass would prevent CIA from getting back into the torture business. But I do find the questions troubling.

7 replies
  1. GKJames says:

    Do we in fact know whether the CIA ever left the torture business? Given that every government utterance to date on the subject has been — to be charitable — incomplete, isn’t it highly likely that torture has made its way into the fabric as standard operating procedure? And isn’t the point about having people rendered to other countries precisely because that’s where they can be tortured while straight-faced suits back home assure themselves and others that “it’s all legal”?

  2. Jeff Kaye says:

    Frankly, what’s remarkable to me is the amnesia concerning what torture has been allowed by Executive Order, namely in the Army Field Manual. Why are you mentioning sleep deprivation and humiliation of detainees, when both are explicitly allowed via Obama’s EO “banning” torture? (via AFM “approaches” Emotional Ego Down” and “Separation”) Hopefully, I will soon have an article out that will specifically show how SERE techniques were “pixie-dusted” in the AFM.

    I do understand the concern about the CIA’s former EIT program, and also about what the HIG may be up to. I don’t know anyone else, really, who writes as consistently about that, especially the latter, as you do.

    On another point, Krass answers incompletely on the question of non-self-executing treaties. The issue has been addressed by no less than Chief Justice Roberts, as I pointed out some years back:

    “… in a decision by the Roberts court, it was found that non-self-executing treaties “still constitute international obligations.” The quote comes from Medellin v. Texas, where the court ruled that the President could not enforce by himself, minus any implementing federal law, the provisions of the Vienna Convention/World Court. Let’s look at one particularly relevant passage, however, in the majority opinion in the case, which proponents of weakening the CAT treaty’s requirement to prosecute torture might want to ponder (emphasis added):

    … under our established precedent, some treaties are self-executing and some are not, depending on the treaty. That the judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is “useless.” See post, at 17; cf. post, at 11 (describing the British system in which treaties “virtually always requir[e] parliamentary legislation”). Such judgments would still constitute international obligations, the proper subject of political and diplomatic negotiations. See Head Money Cases, 112 U. S., at 598. (Majority Opinion, p. 24-25)

  3. Jeff Kaye says:

    As for Krass on that 2007 OLC memo, she said, “Under the President’s January 22, 2009, Executive Order 13491, ‘Ensuring Lawful Interrogations,’ no U.S. Government personnel may rely on any interpretation of the law governing interrogation issued by the Department of Justice between September 11, 2001 and January 20, 2009.” She said the OLC memo was subsequently revoked.

    (Your point that sleep deprivation is still being used is a separate, if related, issue. I say it already is used via Appendix M. Other versions of sleep deprivation I believe are likely used as “research,” e.g., by HIG. But they wouldn’t call it research, because that could bring up various ethical protections. People like Jonathan Moreno have pointed out they hide this kind of thing by calling such new procedures “field testing,” which is particularly exempted from certain human subjects protections. And even that is hidden inside some level of classification. They are not going to make it simple to document it, right?)

    Last year, DoD specifically refuted this CIA line, one which, btw, is usually mouthed by the press. They told me, verbatim:

    Executive Order (EO) 13491 did not withdraw “‘All executive directives, orders, and regulations… from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals.’” It revoked all executive directives, orders, and regulations that were inconsistent with EO 13491, as determined by the Attorney General….[bold emphasis added]

    One last point – you seem suggest below that EO 13491 somehow cancelled Steven Bradbury’s legal review of the FM [Army Field Manual on interrogation and Appendix M]. EO 13491 did not cancel Mr. Bradbury’s legal review of the FM.”[bold emphasis added]

    Here’s the relevant section from the EO itself, on revocation of OLC memos on torture:

    Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order. Upon request, the Attorney General shall provide guidance about which directives, orders, and regulations are inconsistent with this order.

    When I asked DoJ to comment, they refused to do so. See full story: http://dissenter.firedoglake.com/2013/05/01/the-torture-memo-obama-never-rescinded/

  4. emptywheel says:

    @Jeff Kaye: Thanks, I remember that story. Have you ever nudged Udall’s staff abt Appendix M, since he seems to be the one who actually cares about torture these days?

  5. Jeff Kaye says:

    @emptywheel: One more shoe to drop, then I might try Udall’s office. I can only hope that this shoe makes a louder plop than others have. On other hand, I may be writing now for Mother History only.

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