Levi, William Ranney, The Yale Law Journal
NOTE CONTENTS INTRODUCTION I. THE LAW'S LATITUDE: SEPTEMBER 11, 2001 TO THE PRESENT A. Law and Interrogation: The Central Intelligence Agency The Torture Statute 2. The Fifth Amendment 3. Hamdan v. Rumsfeld and the Military Commissions Act B. Law and Interrogation: The Department of Defense II. NAVIGATING LEGAL STRICTURES: ABSOLUTE BANS AND VAGUELY DEFINED ABUSE, 1949 TO 1973 A. Geneva Conventions and the Universal Declaration of Human Rights B. Law and Interrogation: The Central Intelligence Agency 1. Coercion Within the Law 2. Ethics, Efficacy, and Legal Strictures C. Law and Interrogation: The Department of Defense 1. Coercion Within the Law 2. Ethics, Efficacy, and Legal Strictures III. AVOIDANCE: INTERROGATION BY OTHERS, 1973 TO 2001 A. Coercion and the Law B. Coercion by Proxy CONCLUSION
The acquisition of information through interrogation traditionally has been a central component of military and intelligence operations. (1) The need to extract actionable intelligence has, if anything, become more salient since September 21, 200l. A dispersed and "different kind" of enemy with no flag or uniform, an inadequate understanding of this new foe's organization and operations, and pressure to disrupt future surprise attacks have made interrogation fundamental to the War on Terror. (2)
Unlike ordinary police interrogation, interrogation undertaken to acquire intelligence information is not designed primarily to elicit admissions or information that may be used in a conventional prosecution. As noted by Central Intelligence Agency (CIA) interrogation manuals, "Admissions of complicity are not ... ends in themselves but merely preludes to the acquisition of more information." (3) The interrogation goal, as reflected in U.S. Army interrogation manuals, is to "obtain the maximum amount of usable information.... in a lawful manner, in a minimum amount of time." (4) This simply stated objective expresses well the tension inherent to interrogation between obtaining timely intelligence and observing the legal constraints that are understood to apply.
In 2002, the Bush Administration approved the CIA's use of certain coercive interrogation techniques, reportedly including temperature extremes, shackling, stress positions, sleep and sensory deprivation, loud noises, bright lights, nudity, isolation, shaking, head and stomach slaps, and waterboarding--a technique designed to simulate the sensation of drowning. (5) The CIA was not alone in its use of coercive interrogation. A Department of Defense (DoD) "Special Interrogation Plan" authorized eighteen to twenty hours of questioning per day for forty-eight out of fifty-four days, removal of clothing, and exposure to dogs, cold, strobe lights, and loud music. (6)
The use of such pressure techniques and the various legal and policy decisions that authorized them have been variously described as "uncharted," (7) "long condemned," (8) "new and aggressive," (9) and as a fundamental transformation constituting a "New Paradigm." (10) The New York Times reported that "[f]or decades before 2002, the United States had considered several of the methods [ultimately approved for use by the CIA] to be illegal torture." (11) One author, whose works prompted both the Senate and House Judiciary Committees to hold hearings, claimed that the "U.S. military's long-established constraints on cruelty and torture, dating back to President Lincoln in 1863, were ... circumvented" (12) and "discarded," (13) and that the newly authorized interrogation program "turned its back on this tradition." (14) Some take a different approach in characterizing the Bush Administration's legal framework, but these voices also assume a dramatic break with the past--a break justified by exigency. Former Attorney General John Ashcroft posed and answered the question of interrogation policy change: "[W]e made it through the Second World War with one set of rules and we made it through the Cold War with another set of rules; shouldn't we just lock in on all those things and pretend the world's the same? …