Torture Memos & the Rule of Law

By Alan Shapiro

To the Teacher:

President Obama recently released four Bush administration Department of Justice memos on approved interrogation techniques. These documents-- and the new president's view of them--have generated debate about issues that go to the heart of the "rule of law" in a democracy.

The first student reading below provides some background on the memos as well as excerpts from them. The second offers a slightly abridged transcript of President Obama's written statement upon the release of the documents. Discussion questions and suggested approaches for encouraging critical thinking follow, along with a suggested writing and citizenship activity.

Teachers might find useful "Teaching on Controversial Issues" in the high school section of www.teachablemoment.org.

Student Reading 1:
Bush administration 'techniques'

Locking prisoners in boxes, slamming them into walls, forcing them to experience the sensation of drowning through waterboarding. These and other forms of torture called "coercive" or "enhanced" interrogation techniques by Department of Justice (DOJ) lawyers in the Bush administration and used by CIA interrogators have leaked out in recent years.

After the 9/11 terrorist attacks, top government officials thought that other attacks might be imminent. They apparently believed that U.S. law and international treaty commitments stood in the way of forcing prisoners to provide information that might prevent such an attack. They felt they needed to be able to apply aggressive interrogation techniques that would not be defined as "torture" or "war crimes"--since these are outlawed.

The U.S. War Crimes Act defines a "war crime" as "a grave breach" of the Geneva Conventions, which state: "No physical or mental torture, nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatsoever." The UN Convention Against Torture also prohibits torture.

But then Vice President Dick Cheney told an interviewer that the terrorist threat meant the U.S. would have to go over to "the dark side" to defend itself. This Bush administration view resulted in legal opinions that called the Geneva Conventions "quaint." Bush administration lawyers used the term "enemy combatants" instead of "prisoners of war." They defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," in the words of a memo by DOJ Assistant Attorney General Jay Bybee on August 1, 2002.

After Bybee left the DOJ, his successor, Jack Goldsmith, retracted the Bybee opinion that permitted "interrogation tactics just short of homicide." In The Torture Presidency, which Goldsmith wrote after he became a Harvard law professor, Goldsmith maintained that Bybee's opinions had "no source in law" and "rested on one-sided legal arguments." "They were valuable to the administration nonetheless," Goldsmith said, "because the CIA saw one of them as a 'golden shield' against criminal prosecution of agents who had used harsh interrogation techniques." (Steven Gillers, a teacher of legal ethics at the New York University School of Law, "The Torture Memo," www.thenation.com, 4/9/08)

On April 16, 2009, the Obama administration released four more DOJ memos, after the American Civil Liberties Union filed a lawsuit demanding the documents under the Freedom of Information Act. The memos detail what the DOJ regarded as legal interrogation techniques. Some samples:

Nudity

Memo by Steven Bradbury, Chief of DOJ's Office of Legal Counsel, May 10, 2005:

"This technique is used to cause psychological discomfort, particularly if a detainee, for cultural or other reasons, is especially modest. When the technique is employed, clothing can be provided as an instant reward for cooperation. During and between interrogation sessions, a detainee may be kept nude, provided that ambient temperatures and the health of the detainee permit.

"…Interrogators can exploit the detainee's fear of being seen naked. In addition, female officers involved in the interrogation process may see the detainees naked, and…we will assume that detainees subjected to nudity as an interrogation technique are aware that they may be seen naked by females."

Sleep deprivation (more than 48 hours without sleep)

Memo by Steven Bradbury, May 10, 2005:

"The primary method of sleep deprivation involves the use of shackling to keep the detainee awake. In this method, the detainee is standing and is handcuffed, and the handcuffs are attached by a length of chain to the ceiling. The detainee's hands are shackled in front of his body, so that the detainee has approximately a two- to three-foot diameter of movement. The detainee's feet are shackled to a bolt in the floor.

"…We understand that a detainee undergoing sleep deprivation is generally fed by hand by CIA personnel so that he need not be unshackled….If the detainee is clothed, he wears an adult diaper under his pants…it is checked regularly and changed as necessary.

"…The maximum allowable duration for sleep deprivation authorized by the CIA is 180 hours [7 days]."

Waterboarding

Memo by DOJ Assistant Attorney General Jay Bybee, August 1, 2002:

"In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of 'suffocation and incipient panic,' i.e., the perception of drowning.

"…In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture."

Insects Placed in a Confinement Box

Memo by Jay Bybee, August 1, 2002:

"You would like to place [Abu] Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him…..You have orally informed us that you would in fact place a harmless insect such as a caterpillar in the box with him….Focusing in part on the fact that the boxes will be without light, placement in these boxes would constitute a procedure designed to disrupt profoundly the senses…With the respect to the small confinement box, you have informed us that he would spend at most two hours in this box….For the larger box, in which he can both stand and sit, he may be placed in this box for up to eighteen hours at a time."

(See the four memos in their entirety at www.aclu.org in pdf format.)

During 2002-2003, top Bush administration officials met repeatedly in the White House Situation Room to discuss allowable interrogation techniques. Sleep deprivation and waterboarding were among the tortures described in detail and demonstrated. In attendance were Vice President Dick Cheney, Secretary of State Colin Powell, Secretary of Defense Donald Rumsfeld, Attorney General John Ashcroft, CIA Director George Tenet and National Security Advisor Condoleezza Rice. Asked later about these meetings, President Bush said, "I'm aware our national security team met on this issue and I approved." (www.abcnews.go.com, 4/9/08 and 4/11/08)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Why did Bush administration officials think it necessary to use interrogation techniques against prisoners that had been prohibited in the past? Why had these techniques been prohibited?

3. Why did DOJ lawyers provide the Bush administration with new legal opinions on interrogation techniques?

4. How and why did Bybee and Goldsmith differ on these legal opinions?

5. Do you regard the approved DOJ interrogation techniques as torture? Why or why not? Do you think that in the light of the terrorist threat, they were justified-- whether or not they were torture? Why or why not?

6. In the final analysis, who was responsible for the use of such techniques? What makes you think so?

Student Reading 2:
Obama's Response

When the four memos were released, President Obama made this statement (which is slightly abridged here):

"…These memos speak to techniques that were used in the interrogation of terrorism suspects [between 2002 and 2005], and their release is required by the rule of law.

"My judgment on the content of these memos is a matter of record. In one of my very first acts as President, I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer….A democracy as resilient as ours must reject the false choice between our security and our ideals, and that is why these methods of interrogation are already a thing of the past.

"But that is not what compelled the release of these legal documents today. While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security….I believe that exceptional circumstances surround these memos and require their release.

"First, the interrogation techniques described in these memos have already been widely reported. Second the previous administration publicly acknowledged portions of the program and some of the practices associated with these memos. Third, I have already ended the techniques described in the memos through executive order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world…[and] because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

"…The exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

"This is a time for reflection, not retribution….We have been through a dark and painful chapter of our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values and move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

"The United State is a nation of laws. My administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again."

Suggestions for Critical Thinking

The Thinking Game/Doubting Game

One critical thinking approach to a controversial reading is "Teaching Critical Thinking" in the high school section of www.teachablemoment.org. It calls for a rigorous analysis of such a reading by involving students in two games: the "believing game," in which students offer reasons to believe as much of what they have read as possible; and the "doubting game," which calls for a close second reading to raise critical questions and opposing views. Following these two "games" is a student effort to integrate their thinking and come to some conclusions.

Small Group Discussion

A second approach might be to organize the class into groups of four to six students. Have them name a reporter to take notes on their discussion for a report to the class and then to consider such questions as the following:

a. Is there anything in the president's statement that is unclear to you? Are there other students who might clarify these matters satisfactorily? If not, the reporter might include them in his or her summary of the discussion to the class.

b. What is the president's view of the interrogation techniques described in the first reading? Is his prohibition of these techniques consistent with his refusal to prosecute those who used them? Why or why not? What does he mean by "a false choice between our security and our ideals"? Do you agree? Why or why not?

c. The president said that he believes strongly in "transparency and accountability." What do you think these terms mean? Does either word apply to the president's release of the four DOJ memos?

d. Is the president calling for "accountability" in his decision not to prosecute those in the intelligence community who acted on the legal authority of DOJ memos? Why or why not?

e. The president says that "every single American is safer" because of the work of CIA interrogators. What evidence, if any, supports this assertion?

f. At the Nuremberg trials following World War II, top Nazi officials justified their actions by claiming they were "following orders." The Court regarded this defense as unacceptable. The president said that intelligence officers relied "in good faith upon legal advice from the Department of Justice" and should, therefore, not be prosecuted. Do you agree with him? Why or why not? What about those who provided the legal advice? The top officials involved in White House meetings who authorized it? The president who approved of their authorization?

g. President Obama regards prosecution of intelligence officers who acted on DOJ memos as "retribution." Why? Do you agree? Why or why not?

h. The president writes that "nothing will be gained by spending our time and energy laying blame for the past." Do you agree? If not, what do you think could be gained?

i. The president concludes by declaring, "The United States is a nation of laws." The U.S. State Department's Introduction to the "Principles of Democracy" (http://usinfo.org/enus/government/overview/law.html) defines the rule of law as follows:

"Rule of law means that no individual, president or private citizen, stands above the law….Laws should express the will of the people, not the whims of kings, dictators, military officials, religious leaders, or self-appointed political parties."

Is the president acting in accordance with the "rule of law"? Why or why not?

For writing and citizenship

After the groups have their discussions and report back to the class, conduct whatever additional class discussion seems useful. Then assign students to draft a paper responding to the final question above about the "rule of law."

Divide students into small groups and ask them to read and discuss the papers within their group. Then have students make whatever revisions in their papers they think advisable and submit them to the teacher. If they wish, they might mail them to President Obama.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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