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Heather Mac Donald
Heather Mac Donald responds to Marty Lederman on Abu Ghraib and U.S. interrogation policies:

13 January 2005

Mr. Lederman disputes my claim that the atrocities at Abu Ghraib were not the result of Administration interrogation policies. Let’s look at what those interrogation policies have been.

The “Interrogation Rules of Engagement” provided to all military interrogators and soldiers in Iraq read as follows:

Safeguards: The approaches must always be humane and lawful, detainees will NEVER be touched in a malicious or unwanted manner. The Geneva Conventions apply within CJTF-7 [the U.S. counterinsurgency forces operating in post-Saddam Iraq].

The following techniques require the commanding general’s approval; all requests must be submitted in writing:

Change of scenery down

Dietary manipulation (monitored by med [medical team])

Environmental manipulation

Sleep adjustment (reverse schedule)

Isolation for more than 30 days

Presence of mil [military] working dogs

Sleep management (72 hrs max)

Sensory deprivation (72 hrs max)

Stress position (no longer than 45 minutes)

Everyone is responsible for ensuring compliance to the IROE

Violations must be reported immediately to the officer in charge.

Among the outrages committed in Abu Ghraib were punching detainees, jumping on them, beating them with batons, compelling masturbation, and forcing prisoners into naked dog piles. I invite Mr. Lederman, or anyone else, to show which of those sadistic behaviors was included in the Iraq interrogation rules. They are not there. Nor were the abuses committed as part of interrogations; most of the victims weren’t even scheduled to be interrogated.

But let’s pretend that the assaulting guards understood their behavior to be interrogation-related. In administering these “interrogation techniques,” the military guards violated every oversight rule intended to prevent detainee abuse: they did not submit their assault plan for approval in writing, they did not comply with the injunction “NEVER” to touch detainees in a “malicious or unwanted manner,” and they did not observe the Geneva Conventions.

The abuse in Iraq resulted from a violation of the rules, not from compliance with them. Had interrogators and military guards followed the guidelines governing their behavior, none of the sadistic treatment of detainees would have occurred.

Culpability for that treatment does indeed extend beyond the actual perpetrators, as Bush Administration critics have charged, but not to the people who developed interrogation policy. Rather, culpability for the Iraq sadism lies with the military chain of command that responded so ineptly to the Iraqi insurgency and that allowed order within the Abu Ghraib prison to break down completely. None of the soldiers working there knew who was in charge—indeed, no one was. Soldiers talked back to their superiors, refused to wear uniforms, operated prostitution and bootlegging rings, engaged in rampant and public sexual misbehavior, covered the facilities with graffiti, and indulged in drinking binges while on duty. The guards’ brutal treatment of the prisoners was an extension of the chaos that already engulfed the prison. That brutality flagrantly violated the rules for detainee treatment, just as the guards’ disordered actions flagrantly violated military codes of behavior.

Mr. Lederman also challenges my claim that the interrogation policies in Cuba were “irrelevant” to what happened in Abu Ghraib. Let’s look at the interrogation methods that Donald Rumsfeld approved for Guantánamo to see if they overlap with the behavior in Abu Ghraib. Most of the 24 techniques approved on April 16, 2003 for unlawful combatants held in Cuba were traditional approaches for lawful prisoners of war. The following seven approaches, however, were new:

--Change of Scenery Up: Removing the detainee from the standard interrogation setting (generally to a location more pleasant, but no worse).

--Change of Scenery Down: Removing the detainee from the standard interrogation setting and placing him in a setting that may be less comfortable; would not constitute a substantial change in environmental quality.

--Dietary Manipulation: Changing the diet of a detainee; no intended deprivation of food or water; no adverse medical or cultural effect and without intent to deprive subject of food or water, e.g., hot rations to MREs [meals ready to eat].

--Environmental Manipulation: Altering the environment to create moderate discomfort (e.g., adjusting temperature or introducing an unpleasant smell). Conditions would not be such that they would injure the detainee. Detainee would be accompanied by interrogator at all times. [boldface added]

--Sleep Adjustment: Adjusting the sleeping times of the detainee (e.g., reversing sleep cycles from night to day.) This technique is NOT sleep deprivation.

--False Flag: Convincing the detainee that individuals from a country other than the United States are interrogating him.

--Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment. [Caution: The use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extension of the length of isolation by the appropriate chain of command. This technique is not known to have been generally used for interrogation purposes for longer than 30 days. Those nations that believe detainees are subject to POW protections may view use of this technique as inconsistent with the requirements of Geneva III.]

Rumsfeld’s memo reiterated that the “US Armed Forces shall continue to treat detainees humanely, and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions.” All 24 techniques required a specific interrogation plan, the presence or availability of qualified medical personnel, appropriate supervision, and senior approval.

None of the criminal behavior in Abu Ghraib derived from the Guantánamo interrogation policies. I see no mandate for nudity, forced masturbation, or clubbing detainees. Had the soldiers in Abu Ghraib followed the letter—or spirit—of the Guantánamo rules, Abu Ghraib would not have happened. Nearly every line of the memo testifies to the care that the military took to avoid inflicting pain or harm, even as it tried to balance the imperative of getting information from terror suspects.

Mr. Lederman spends considerable time discussing the DoD Working Group Report, a set of recommendations published on April 4, 2003 and immediately superseded by Rumsfeld’s April 16 order. Mr. Lederman argues that this report demonstrates the effect of the August 2002 Office of Legal Counsel “torture” memo on interrogation practices on the ground. He neglects to mention that not one of the non-standard techniques suggested in the Working Group Report was approved. It is not merely the case, as Mr. Lederman grudgingly concedes, that “Secretary Rumsfeld declined to approve of some of the more coercive techniques”; he approved none of the “coercive techniques.” If Mr. Lederman can provide evidence or even a plausible scenario for how grunts on the ground in Iraq felt influenced by proposals produced in Washington by military lawyers and rejected after 12 days, I’d love to see it. Moreover, here again, the “coercive techniques” that Mr. Lederman sees as just this side of torture do not begin to approach the assaults of Abu Ghraib.

The December 2002 proposal for interrogating Guantánamo prisoners that Mr. Lederman discusses also had an exceedingly brief shelf life—it wound up withdrawn after six weeks. The chance that it influenced Abu Ghraib is de minimis. And none of the techniques approached torture or Abu Ghraib-style sadism.

The only evidence Mr. Lederman provides for the proposition that the OLC torture memo influenced interrogation practice is the similarity between the OLC’s analysis of possible defenses to the charge of torture and the abortive DoD Working Group Report’s analysis. That similarity proves nothing—and not only because the Working Group Report was never implemented. To make his case, he would have to show that the interrogation practices that were approved (see the Iraq Rules of Engagement and the seven approaches from Rumsfeld’s April 2003 guidelines for Guantánamo) depended on the OLC’s extremely narrow definition of torture as pain equivalent to that “accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or mental pain that resulted in “significant psychological harm of significant duration, e.g., lasting for months or even years.” In other words: do change of scenery, dietary manipulation, and impersonating a Saudi intelligence agent fall just short of producing pain “accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or mental pain that resulted in “significant psychological harm of significant duration?” I don’t think so. Nor do such techniques come close to a more conservative reading of the Torture Convention’s injunction against the intentional infliction of severe physical or mental pain or suffering.

Prisoners in Guantánamo were shackled when moved or put in an interrogation booth awaiting an interrogator. Usually, they were unshackled when the interrogator arrived, unless they had proven themselves particularly violent. Shackling is always uncomfortable, but it is an inevitable concomitant of prison life, however outrageous it seems to civilians with no experience of prisons or detention. American prisoners in high-security domestic lock-ups are routinely shackled for violent behavior. The interrogators I have spoken with from Guantánamo find the charge that detainees were shackled for excessive periods incredible, given the bureaucratic procedures at the facility. Might it have happened occasionally, whether deliberately or through oversight? It is impossible to disprove. But lengthy shackling beyond any security imperative has no relation to the interrogation methods that Rumsfeld approved for Guantánamo.

My sources are wholly unaware of the alleged “low chair,” an Israeli method. Interrogators would sometimes use rock music to keep detainees awake beyond their usual sleep schedule, but not at ear-splitting levels. My conscience remains un-shocked by the practice of “false flag”—fooling a detainee into believing that a foreign national is interrogating him. Not only is the deception not torture; the ruse would have no effect if Americans had been torturing prisoners. The concerted efforts of many Guantánamo Bay prisoners to avoid repatriation suggests that they understand the difference between American interrogation techniques and torture, even if the human rights advocates do not.

Mr. Lederman’s final discussion of the Fay report is irrelevant, for the reasons discussed above. Even accepting the conclusion that interrogation directives from Gitmo determined interrogation practices in Iraq (a conclusion that the forthcoming Church report rejects), the Abu Ghraib abuse would not have happened if the soldiers there had followed the Gitmo procedures. The Fay report provides no evidence that any of the extreme techniques that the CIA used on such high value detainees as Khalid Sheikh Mohammad were used in Abu Ghraib, or had any effect on Charles Graner, Lynndie England, et al.

I have never advocated “lawlessness” in the war on terror or interrogation practices beyond “legal limits.” I have argued that terrorists are unlawful combatants ineligible for coverage as prisoners of war under the Geneva Conventions. The strict Geneva limits on questioning soldiers who obey the laws of war should not apply to terrorists who violate those laws; giving terrorists protection as lawful prisoners of war would destroy the Geneva Conventions, because the incentive to obey Geneva rules would be thereby eviscerated.

But just because terrorists do not merit POW protections does not mean that they may be tortured. The stress techniques promulgated to date, including the extensive bureaucratic checks on their deployment, are far from torture. I believe that they are a reasonable and lawful response to the very real problem of detainee resistance to questioning.

How restrictive has the actual interrogation regime—not the one fabricated by the press and by advocacy groups—been? A crack New York Police Department detective stationed at Guantánamo used to lament that he could not take his prisoners back to New York City: “Give me a decent Assistant District Attorney and let me go to work on these guys, and I could get them to talk.” He was not talking about the third degree, which has been absent from the NYPD for decades, but about quotidian police methods, such as good cop-bad cop, considered too controversial for Gitmo.

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More by Heather Mac Donald:
Prosecution Gets Smart
New York City’s Crime Disease
De Blasio’s Policing Dilemma
More . . .
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