"Is It Humane"?

This past week, David Frakt, one of our Contributors for the report, sent me the following very illuminating response to my last diary post, “How Close to the Rack and Screw.”

David served as lead defense counsel for the Office of Military Commissions and represented several Guantánamo detainees including Mohammed Jawad, who was recently released. He traces some of the phrases quoted in the “Rack and Screw” questionnaire to the court rulings where they first appeared – and he notes that in the Jawad case in particular, a court affirmed the idea, present in some form in all of the cases the questionnaire alluded to, that torture and abusive treatment seriously jeopardize the government's ability to prosecute those it has abused.

His analysis is particularly timely and valuable in light of the announcement on Friday that five Guantánamo detainees who had been held both in secret CIA prisons, where they were subjected to the so-called “enhanced interrogation techniques” (including Khalid Shaikh Mohammed, who was waterboarded 183 times) will be transferred to the United States to stand trial in New York. Much is being made of the daunting legal challenges and procedural challenges these prosecutions will face. But as the legal history David cites makes clear, many of these challenges wouldn't exist if they hadn't been tortured in the first place.

Larry–

In reading your latest post about the mystery document, I recognized many of the quotes, and wanted to share the sources with you and our readers.

1.  Describe how each technique is consistent with “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them.” This is a quote from the Supreme Court opinion, County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998) ”in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them.”

2.  To what extent are the techniques designed to “instill stress, hopelessness, and fear, and to break resistance.” I believe that the source of this quote is a federal appellate opinion Cooper v. Dupnik, 963 F.2d 1220, 1229 (9thCir. 1992)  “ In accord with the plan, the record amply demonstrates that Cooper was subjected to Barkman's interrogation techniques designed to instill stress, hopelessness, and fear, and to break his resistance.” 

This case sets forth a standard for what it takes to overcome the qualified immunity standard in a civil rights lawsuit against government officials. The Supreme Court denied certiorari on this case. Here is the Lexis-Nexis overview of Cooper v. Dupnik:

Pursuant to their plan to extract a confession to serial rapes, appellant police officers deliberately ignored appellee detainee's requests for counsel and subjected him to intense custodial interrogation. After appellees, detainee and family, brought suit under 42 U.S.C.S. § 1983 against appellants, city and officers, for violation of his U.S. Const. Amend. V and XIV rights, the trial court denied appellants' defense of qualified immunity. Appellants sought review, arguing that the interrogation contravened the Miranda standards but was not a violation of constitutional rights. The court affirmed and ruled that the privilege against self-incrimination applied to custodial questioning as well as court proceedings, that the privilege included the right to remain silent and to have counsel present, and that no immunity shielded a deliberate constitutional violation. The court also ruled that the failure to extract a confession or to charge a crime was irrelevant, that extraction of a statement with any evidential value denied due process, and that the right to remain silent was breached and due process violated effective with the physical or psychological coercion.

3. Do any of the techniques cause “severe mental distress or suffering”? This language paraphrases the Convention Against Torture, Article I: “torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession”  The prohibition on torture in the CAT has been codified into U.S. criminal law in the U.S. War Crimes Act, which provides the following definition of torture: “ an act 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 for the purpose of obtaining information or a confession” 18 U.S. C. § 2441 (d) (1)(A)

4. How close is each technique to the “rack and screw”? This is a quote from Rochin v. California, 342 U.S. 165, 172 (1952) , a Supreme Court case which established the premise that evidence derived from outrageous government conduct could be excluded and convictions based on such evidence could be overturned.  The full quote from Rochin:   This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents -- this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”

5.  Do the techniques “offend hardened sensibilities”? Another quote from Rochin v. California , 342 U.S. 165, 172 (1952)

6.  Do the techniques violate “the whole community sense of decency and fairness that has been woven by common experience into the fabric of acceptable conduct”? This is a quote from another Supreme Court case, Breithhaupt v. Abram , 352 U.S. 432, 436 (1957) : Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of "decency and fairness" that has been woven by common experience into the fabric of acceptable conduct. It is on this bedrock that this Court has established the concept of due process.”  (A sphygmogram is a tracing made by a sphygmograph and consisting of a series of curves that correspond to the beats of the heart.)

7.  Do the techniques “violate the decencies of civilized conduct”? Another quote from Rochin v. California , 342 U.S. 165, 173 (1952): “It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. These decisions are not arbitrary exceptions to the comprehensive right of States to fashion their own rules of evidence for criminal trials. They are not sports in our constitutional law but applications of a general principle. They are only instances of the general requirement that States in their prosecutions respect certain decencies of civilized conduct. Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend "a sense of justice."

8.  Are the techniques “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience”? This is a quote from another U.S. Supreme Court opinion, County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998) : I n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them. 

The County of Sacramento quote is a paraphrasing of Rochin v. California , This is conduct that shocks the conscience.”

What the series of questions in this mystery document suggests is that those reviewing the interrogation techniques were concerned that the use of the techniques could subject them to criminal charges for torture or civil lawsuits for damages, and could result in the exclusion of the evidence obtained and/or dismissal of entire charges in subsequent criminal prosecutions of the persons being interrogated utilizing the proposed techniques on the basis of a due process violation.

This questionnaire also shows the author's awareness that the Supreme Court would likely find that Constitutional due process standards would apply to detainees when ultimately tried, even in military commissions.

This series of questions highlights the importance of the President's decision that the Geneva Conventions, even Common Article 3, did not apply to those captured in the war on terror. If these standards applied, then you wouldn't need all these questions, because you would only need to ask one question about any proposed interrogation technique: “Is it humane?” (Common Article 3 requires that persons detained in an armed conflict “shall in all circumstances be treated humanely.”) “Is it humane?” is the one question you will never see in any of the Bush Administration memos.

The reason that I recognize so many of these quotes is that I used them in my motion to dismiss the charges against my client Mohammed Jawad (a former Guantánamo detainee, now released) on the basis of torture, utilizing the “outrageous government conduct” standard.  The motion and government response can be found here. Although the judge did not grant the motion to dismiss, he did affirm that he had the power to do so, reaffirming the viability of this doctrine, even in military commissions. The opinion is available here.

(Emphasis added.)

 

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