Correcting the historical record on U.S. interrogation policy

Last night, I discussed a Yale Law Journal Note by WIlliam Ranney Levi which demonstrates that, contrary to the shrill claims of folks like Jane Mayer, Philippe Sands, Sen. Durbin, and PBS (per the program Frontline), Bush administration interrogation policies do not represent a dramatic repudiation of and stark departure from American traditions. Indeed, Levi shows that, “every interrogation method allegedly authorized since 9/11, with the possible exception of waterboarding, “was authorized at times before 9/11 and was considered to be consistent with the reigning legal framework.” Tonight, I will describe some of Levi’s specific findings regarding the post World War II interrogation policy and practices of the United States.

Levi shows that during the period from 1949 to 1973, the CIA authorized the use of, and used, such special interrogation techniques as truth drugs, LSD, heat and cold, “electric methods,” and narco-hypnosis. Towards the end of this period, it begin to rely less on severe measures to lower the source’s physiological resistance and more on ways to reduce their psychological capacity to resist. This meant increased reliance on isolation, threats, disruption of sleep patterns, and use of stress positions.

The armed forces also relied on narcotics and used LSD from 1958-1962. Even prisoners of war could be made to stand at attention when being interrogated and no time limit was placed on this technique. Sleep deprivation without limitation was also permitted. So was isolation. It should be noted that when these techniques were authorized for use by military interrogators in 2002, they were sanctioned only on a more limited basis and only for use on unlawful combatants, not prisoners of war.

After 1973, interrogation by proxy came to characterize U.S. policy on obtaining information from those who did not wish to give it up. The CIA continued to interpret the law as allowing the use of stress positions, disrupted sleep, solitary confinement, sensory deprivation, threats of violence, temperature manipulation, and examination of body cavities. However, with the agency under intense scrutiny at home and with the law being uncertain (international law on interrogation has been, and remains, short on specific definitions of that which it prohibits), the simplest solution was to farm out interrogations to others. Both the CIA and the U.S. military provided training in coercive interrogation techniques to its proxies.

By the early 1990s, with the end of the Cold War, both the CIA and the military had discontinued such training. But soon the challenges posed by terrorism caused the U.S. to develop a new proxy interrogation regime — extraordinary rendition. According to Levi, starting in 1995 the rendition of terrorists from one state to another became routine. The CIA would assist with logistical support in the detention and transfer and then, in the words of its former inspector general, “use the fruits” of interrogations conducted by foreign intelligence services, such as the Egyptians and Saudis, employing whatever coercive techniques they chose to.

Thus, when Phillppe Sands (to take one particularly dishonest commentator on the subject) declares that “the U.S. military’s long-established constraints on cruelty and torture dating back to President Lincoln in 1863, were. . .circumvented” and “discarded” and that the newly authorized interrogation program “turned its back on this tradition,” he is not telling the truth.

But Levi also insists that what he calls “the Bush administration’s flawed and careless legal work” also has contributed to the perception that something unprecedented was afoot. He argues, for example, that the “torture memo,” with its dubious legal definition of torture and its argument that, as Commander-in-Chief, the president has complete discretion to authorize interrogation by torture despite a federal criminal statute to the contrary, “made it appear that for coercive interrogation to be considered lawful, the existing legal regimes had to be eviscerated. . .”

This too is false. The reality, Levi argues persuasively, is that “all former and present laws on interrogation. . .are vague and contestable, and thus, when context demands, manipulable.” If this is problematic, he concludes, “then a rethinking of interrogation law and policy is necessary.”

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