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Torture and Interrogation

Fall 2005 White Paper Term Project for: UW CSEP 590 tu (Homeland Security / Cybersecurity) UCB PP 190/290-009

Team Members:

• Barbra Ramos (UCB GSPP)
• Christopher DuPuis (UW PMP)
• Dennis Galvin (UW PMP)
• Eiman Zolfaghari (UW PMP)
• Sean David Cardeno (UCB GSPP)

The Paper as it is shaping up

Overview

Overall question: Under what circumstances, if any, should the use of torture to obtain information from prisoners be considered acceptable?

At present the United States is engaged in what it has termed the "Global War on Terror." In this effort many prisoners are taken by the US and its allies. Clearly some percentage of these prisoners may hold information which has the potential to: 1) prevent (or lessen the impacts of) terrorist acts against civillians; 2) prevent terrorist acts against military targets; 3) provide the means to break up the terrorist network(s); 4) provide the means to disrupt terrorist command and control activities. Similar situations may exist in many other areas of the world (Chechenya, Israel, etc) where a recognized government is "at war" with terrorist organizations.

The governments or occupying powers hold an assymetric relationship with the groups they are fighting. Decisions of the governments will be unilateral and any concessions toward humane treatment will not necessarily be reciprocated by the terrorist groups.

This paper does not directly examine issues of whether the detention of prisoners is justified, but rather the conduct of interrogation sessions and whether the use of torture in those sessions is ever justifiable.

Definitions:

• Interrogation:
  • Dictionary Merriam-Webster Online Dictionary
    • verb: 1 : to question formally and systematically
• Torture
  • Dictionary Merriam-Webster Online Dictionary
    • noun: 2 : the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure
    • verb: 1 : to cause intense suffering to : TORMENT 2 : to punish or coerce by inflicting excruciating pain
  • [18 USC 113C Section 2340 US Anti-Torture Act]
    • (1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
    • (2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from -
      • (A) the intentional infliction or threatened infliction of severe physical pain or suffering;
      • (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
      • (C) the threat of imminent death; or
      • (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

The definition of interrogate yields very little sense of the fact that subjects of interrogation do not generally want to divulge information. Interrogators often utilize coercive techniques to cause the subject to cede the desired information. These coercive techniques exist on a continuum from "direct questioning" through "torture" and "death" (Filarowski-Sheaks, Christina, Interrogation Policy & the Global War on Terrorism, Presentation to Terrorism Cybersecurity Class, Berkeley, California, 30-Nov-2005). Clearly this paper must examine the slippery slope between the extremes of coercive techniques.

Short History of Torture

I. Greece: torture of slaves and (some) foreigners

Starting in about the sixth century B.C., Athenian legal procedure placed great value upon the sworn testimony of an Athenian citizen, building much of their code of laws upon the idea that the honor and status of a citizen would compel him to speak the truth. As an additional inducement to speak truth, citizens found to have perjured themselves could be declared infamous and banished from the city. However, when the testimony of a non-citizen, such as a slave or a foreigner, was required, no such compulsion was recognized. Athenian law therefore provided a means by which the word of a person without honor might be made acceptable as evidence in a trial: torture. (Peters, 13)

II. Rome: torture of slaves, eventually grows to torture of lower classes and in cases of treason.

The Romans also used torture, and, like the Athenians, they placed restrictions on the class of people who could be subjected to torture. At first, the law absolutely prohibited the torture of freeborn citizens, and it provided greater protection to to the slave than the Greek laws by allowing only slaves who had been accused of a crime to be tortured. Furthermore, torture of slaves was restricted to criminal, rather than civil, cases, again reducing the threat of torture to the slave. (Peters, 20) However, these protections were gradually stripped away, first by allowing slaves to be tortured over monetary disputes, then by allowing freemen of "low estate" to be tortured, and finally in allowing freemen of both humble and noble class to be tortured in cases of treason. (Peters, 18)

III. Getting medieval: torture techniques

IV. Rise of torture: 12th-13th century Europe

   A. Before torture: combat and the ordeal

   B. Roman canon law

      1. Law for capital cases

a. System of proofs b. Confession as prime proof c. Means of using torture to obtain confession d. safeguards against false confession e. getting accomplices

      2. Law for lesser offenses

   C. Secular trials

      1. Continental Europe: follow Roman canon law & torture

      2. British Isles: Court of public opinion: no torture

   D. The Inquisition
      
      1. Innocent IV & Ad extirpanda: demanding torture of heretics

      2. Heresy: no safeguards against false confession, since no

objectively observable act has occurred

      3. Denunciation of "fellow heretics"

   E. Extrajudicial torture
      1. King John and the Jews
      2. Tudors

V. Abolition of judicial torture

  A. Replacement for Roman-canon system
     1. Alternative punishments, allowing "lesser offense" procedure
     2. Rise of jury system, as well as confidence in it

  B. Moral arguments from Voltaire et al

  C. Foucault's argument

  D. Result: everyone bans torture

VI. Survival of torture as an engine of state: then to now

   A. Torture in law enforcement
      1. USA in 1930s
      2. South Africa
      3. Okhrana

   B. Torture in the interest of the party
      1. Nazi Germany
      2. USSR

   C. War
      1. Algeria

   - Espionage

IX. Getting medieval again: modern torture techniques

X. More recent torture activity

Torture Legislation or Law

• Geneva Conventions and Protocols
  • differences in interpretation
• US Constitution and Amendments
• US Anti-Torture Act (18 USC 113C Section 2340)
• Landau Commission in Israel (1987-1999)
• What is the case for codifying or not codifying the use of coercive techniques in interrogation?
  • Dershowitz arguments in Ticking Bomb scenario
  • If coercive techniques explicitly allowed in law, do we have the "slippery slope" to torture?
  • If coercive techniques explicitly disallowed in law, will torture occur anyway? Just hidden? Officially denied?

Organizational use of torture

• Police, Military, Anti-state forces (revolutionary, terrorist), Intelligence agencies.
• Nations involved in torture (US, Russia, Israel?, China?)
• Examples:
  • 1.US Military/CIA use of torture (Extraordinary Rendition, Abu Ghraib, Guantanamo)

Organizations monitoring torture

• Human Rights Watch
• Amnesty International
• United Nations

Motivation for and efficacy of using torture in interrogation

• Extract confessions.
• Get names of accomplices.
• Get strategic information?
• Get details of terrorist plots.
• Quality of information extracted?
• Resistance to medieval techniques compared to resistance to modern techniques.
• Torture isn't a fast process
• Strategies against torture for terrorist organizations

Benefits / Repercussions of using torture

• Diplomatic and Political
• Decreased civil liberty?
• Increased safety of society?
• Public Reactions (internal, external)
• Media image

Is there an ethical case for torture?

The ticking bomb (Dershowitz and others)

Torture in times of war, times of peace

How the work will be divided

The team assembled on Wednesday, 09-Nov, and we are still in the process of determining the overall shape of the topic to be covered in the paper. We have sketched a preliminary (subject to change) outline of areas to investigate. Each team member will then identify an area they will maintain primary responsibility for. As progress is made in each area, the information should be posted to the wiki, and other team members should offer constructive criticism, advice, etc.

We have a starting point reading / resource / reference list which will be added to over the course of the initial phases of the project.

So far, the following team members have expressed preliminary interest in portions of the overall paper:

• Christopher DuPuis: "History of Torture", "Efficacy of Torture in Interrogation"
• Dennis Galvin: "Torture Legislation / Law"
• Barbra Ramos: "Nations involved in torture", or "Organizations Monitoring Torture"
• Sean Cardeno: "Organizational Use of Torture"
• Eiman Zolfaghari "Benefits / Repercussions of Using Torture"