Interrogation and Torture during the War on Terror

Summary: The United States-led War on Terrorwhich began in 2001 in the aftermath of the September 11 terrorist attacksgenerated repeated allegations that Central Intelligence Agency (CIA) and military intelligence units engaged in "torture" while questioning members of Al-Qaeda, the Taliban, and other terrorist suspects. The George W. Bush administration denied such charges. The debate centered around what comprises "torture"specifically, whether torture is limited to interrogation techniques that inflict extreme pain on the subject or whether other questioning proceduressometimes described by officials as "enhanced techniques," qualify as "torture" under applicable international and domestic laws. In mid-2008, evidence confirmed earlier reports that several interrogation techniques used by the United States were lifted directly from a study of methods used against American prisoners during the Korean War (1950–19533). Fresh documentary evidence about practices used during the war on terrorism emerged in April 2009 with the release of previously classified documents authorizing specific techniques. Also under question was whether the "enhanced techniques" were effective or whether they generated false confessions. CIA Director Michael Hayden told reporters in 2008 that interrogations of two Al-Qaeda suspects, with the use of simulated drowning (waterboarding), accounted for about one-fourth of all human intelligence about Al-Qaeda collected between their capture in 2002 and 2003 and their transfer to Guantánamo Bay, Cuba, in 2006. Nevertheless, in 2008, Congress passed legislation limiting interrogation techniques to those approved in the Army Field Manual, which bars physical coercion during questioning.

The war on terrorism declared after the September 11, 2001, terrorist attacks generated accusations that the United States deliberately utilized torture during interrogations of captured Al-Qaeda leaders and other terror suspects. The most commonly cited technique was waterboarding, in which a subject is tied to a board, face covered, and water is poured over their face, simulating drowning. Other techniques described by critics as torture included depriving prisoners of sleep, making prisoners stand for long periods or public humiliation. In most cases, the Central Intelligence Agency was accused of torture. The administration of President George W. Bush consistently denied that the United States engaged in torture.

In January 2009, on the second full day of his administration, President Barack Obama issued an executive order limiting interrogation methods to those authorized by the Army Field Manual and including the CIA within the limits. The Army Field Manual, in turn, has been widely judged to comply with standards for treating prisoners of war consistent with the Geneva Conventions and other international treaties barring "torture."

In April 2009, over strenuous objections by former intelligence officials, the Obama administration made public three documents generated by the Justice Department's Office of Legal Responsibility during the previous administration, which referenced specific interrogation techniques, including waterboarding. It declared they did not qualify as torture. The Obama administration also said it would not prosecute CIA officers who relied on these memoranda to justify using the techniques in question. At the same time, former Vice President Dick Cheney asked that secret documents be declassified and released, which he said would show that the interrogation techniques had yielded valuable information.

Definition(s) of torture

Article 1 of the United Nations Convention Against Torture of 1985, ratified by the United States, defines torture as:

"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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions."

Common Article 3 of the Geneva Conventions, as revised in 1949 (a provision common to different conventions that apply to different categories of individuals, e.g., soldiers, prisoners of war, and civilians), specifically protects prisoners of war and civilians from "violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment, and torture; … (and) (c) outrages upon personal dignity, in particular humiliating and degrading treatment."

Under federal law, Title 18, Part 1, Chapter 113C, Section 2340, torture is described as "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." The law defines severe mental pain or suffering as:

"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 same law states that the ban on torture is applicable to the United States, defined as "all areas under the jurisdiction of the United States."

Debate over the Use of Torture

The debate over whether American agents used torture after September 11, 2001, centered around specific interrogation techniques used on Al-Qaeda suspects. In February 2008, American officials acknowledged for the first time that such methods included waterboarding in three cases In a series of legal memoranda involving the Justice Department and President Bush's legal adviser, the administration concluded that torture must involve "severe pain" comparable to dying or organ failure. Other techniquesreferred to as "alternative set"did not amount to torture, even if they included inflicting some level of discomfort. In publicized cases, such as prisoner abuse at Iraq's Abu Ghraib prison, the administration blamed rogue soldier guards acting outside their authority. According to a Washington Post report in October 2008, CIA Director George Tenet requested and received White House memoranda in 2003 and 2004 explicitly authorizing specific interrogation techniques, including waterboarding, to provide legal cover for agents using these techniques. Officials in the Justice Department also produced memoranda stating that the interrogation techniques did not violate international laws banning torture. Those memoranda were made public in April 2009 and described waterboarding in detail, along with other methods.

In January 2009, President Obama's nominee to become attorney general, Eric Holder, said he thought waterboarding did violate treaties against torture, raising the prospect of future legal investigations and prosecutions. President Obama later said he did not favor prosecuting CIA officers who used the techniques authorized by the Office of Legal Counsel under the administration of President George W. Bush.

Waterboarding

Foremost among the specific interrogation techniques questioned is waterboarding—immersing a detainee's head in water or pouring water over a detainee's head to simulate the sensation of drowning. In February 2008, senior US officials acknowledged for the first time that waterboarding had been used on three Al-Qaeda prisoners. On January 30, 2008, Attorney General Michael Mukasey testified before the Senate Judiciary Committee that "there are some circumstances where current law would appear to prohibit waterboarding's use. But other circumstances would present a far closer question." On February 13, 2008, the Senate passed an intelligence authorization bill approved earlier by the House that limited allowable interrogation techniques to procedures supported by the Army Field Manual. That manual bars the use of physical force in interrogations. The White House said President George Bush would veto the bill because it limited intelligence collection.

Enhanced Interrogation Techniques

ABC News in 2005 reported on CIA's use of "enhanced interrogation techniques." The list was echoed in an August 2007 report in The New Yorker magazine. Enhanced interrogation techniques included:

• Keeping prisoners in a small cage called a "dog box"—too small for them to stand—for prolonged periods
• Suspending the prisoner from the ceiling by the hands so that the toes barely touch the floor—for prolonged periods
• Depriving detainees of sleep for prolonged periods
• Forcing prisoners to stand upright for prolonged periods
• Forcing prisoners to maintain a crouching position for long periods
• Keeping prisoners in cold cells and dousing them with cold water. At least one prisoner was alleged to have died of hypothermia
• Sensory deprivation—keeping prisoners in pitch-black cells for prolonged periods with no light or sound
• Exposing prisoners to deafening music twenty-four hours a day for weeks on end
• Open-handed slaps designed to cause pain and fear without the actual physical injury of a fisted blow
• Sexual humiliation, including frequent searches of the prisoner's anal cavity and searching naked prisoners in the presence of female guards.

Legal framework

On July 20, 2007, President Bush issued an executive order describing permitted interrogation techniques. Titled "Interpretation of the Geneva Conventions Common Article 3 as applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency," Bush's statement declared that "the United States is engaged in an armed conflict with Al-Qaeda, the Taliban, and associated forces." The report "reaffirmed" a finding on February 7, 2002, that "members of Al-Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war." However, the order continued, "Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency."

Bush ordered that:

"the conditions of confinement and interrogation practices of the program [operated by the CIA] do not include: (A) torture. (B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments; (C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment. (E) willful and outrageous acts of personal abuse done for humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or (F) acts intended to denigrate the religion, religious practices, or religious objects of the individual."

Suspected members or supporters of Al-Qaeda, the Taliban, or "associated organizations" may only be questioned using methods "determined by the Director of the Central Intelligence Agency, based upon professional advice, to be safe for use with each detainee with whom they are used." Suspected terrorists must "receive the necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care." Bush's 2007 order was one in a series of memoranda from administration officials, including Defense Secretary Donald Rumsfeld and former Deputy Assistant Attorney General John Yoo, authorizing what came to be called "enhanced" interrogation techniques. Many authorized methods conformed to the SERE program. The administration insisted the enhanced techniques conformed to limits that fell short of torture. Other memoranda asserted that terrorists fell in a category called "enemy combatants" and, therefore, were not covered by the Geneva Conventions on treating prisoners of war.

Origins of US Enhanced Interrogation Techniques

Many of the interrogation techniques used in the war on terror had a very specific origin: a chart that appeared in a 1957 article by Albert D. Biderman, a sociologist working for the US Air Force, titled "Communist Attempts to Elicit False Confessions From Air Force Prisoners of War." The article and the accompanying chart were part of a study designed to teach future captured Americans how to resist such interrogation techniques—which, it said, was part of a "Communist attempt to extort false confessions" that could be "understood essentially as a teaching procedure" rather than one of extracting information, and one familiar for centuries. The results of the techniques were known in the 1950s as brainwashing. As a result of embarrassing "confessions" by American POWs in the Korean conflict, the Defense Department developed training techniques designed to help servicemen foresee and deal with such treatment. These techniques are called SERE—Survival, Evasion, Resistance, and Escape.

The specific "enhanced interrogation techniques" were traced to a chart accompanying the Biderman article in the September 1957 Bulletin of the New York Academy of Medicine published in July 2008 by the New York Times, quoting anonymous sources familiar with the original article and the SERE program. Apart from the dubious origins of the techniques, the article from which they were derived specifically used the term "torture" to describe them.

Evolution of Interrogation Techniques after September 11, 2001

Immediately after the attacks of September 11, 2001, the CIA scrambled to interrogate terrorist suspects. The adopted methodology evolved from the SERE program's long-standing reverse engineering of Korean War Chinese interrogation techniques and efforts to insulate American service members from their effects. After the 2001 US invasion of Afghanistan and the 2003 invasion of Iraq, the US captured more individuals suspected of involvement in terrorist activity.

An assessment by the Defense Department's Deputy Inspector General for Intelligence, Shelton R. Young, dated August 26, 2006, concluded, "SERE training incorporates physical and psychological pressures, which act as counter-resistance techniques, to replicate harsh conditions that the Service member might encounter if they are held by forces that do not abide by the Geneva Conventions." The report described SERE techniques as:

"The use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and his family: exposure to cold weather or water (with appropriate medical monitoring); use of a wet towel and dripping water to induce the misperception of suffocation; use of mild, noninjurious physical contact such as grabbing, poking in the chest with the finger, and light pushing."

The Pentagon report tracked the migration of SERE techniques from the CIA to facilities operated in Afghanistan, Guantánamo, and Iraq, where controversy erupted over the treatment of Iraqis at the Abu Ghraib prison.

Effectiveness of Enhanced Interrogation

Aside from the legality of enhanced interrogation techniques, discussions have also focused on whether such techniques generate credible information. In the original Biderman study, the methods were described as mainly having generated false confessions—efforts by prisoners to avoid torture by saying what they thought their captors wanted to hear.

President Bush said using enhanced techniques had gleaned information that otherwise would not have been forthcoming, citing the case of Al-Qaeda operative Abu Zubaydah, captured in Pakistan in March 2002. According to some reports, FBI interrogators, using "rapport building," were able to obtain Abu Zubaydah's cooperation before the CIA could get its team of interrogators on the scene. FBI officials have consistently criticized the CIA's enhanced techniques as potentially illegal and ineffective.

Some interrogation experts argue that the usefulness of any information provided by suspected terrorists is strictly limited in time. Once the colleagues of a captured terrorist realize an individual has been detained, plans are likely to be dropped or changed with the realization that a detained suspect may reveal them under questioning.

On the other hand, CIA Director Michael Hayden was quoted in February 2008 as having told reporters that interrogations of two Al-Qaeda suspects, which included waterboarding, accounted for about one-fourth of all human intelligence about Al-Qaeda collected between their capture in 2002 and 2003 and their transfer to Guantánamo Bay detention camp at the US Navy base in Guantánamo Bay, Cuba, in 2006. Throughout the early 2000s, further controversy developed as prison staff faced additional accusations of mistreatment of prisoners, including some allegations of torture.

Later Developments

In December 2014, after a three-year investigation, the Senate Intelligence Committee issued a scathing report which condemned the practices of the CIA and individuals involved in the US torture program, arguing that it was even more brutal than the CIA had initially revealed. Notably, the committee also failed to find a single instance where the CIA's so-called enhanced interrogation techniques could not yield accurate or meaningful information from detainees. The CIA denied many of the allegations in the report and continued arguing that information extracted using torture had saved American lives.

Despite a lack of legal consequences in the US for those involved in the country's torture program, some international courts penalized the governments of countries that cooperated with the program. In 2014, the European Court of Human Rights found Poland guilty of violating the European Convention of Human Rights for allowing the CIA to torture two detainees on Polish territory in 2002 and 2003. Poland was required to pay 100,000 euros in damages to each individual. Romania and Lithuania were found guilty 2018 on similar grounds and ordered to pay damages.

While President Obama pledged to close the Guantánamo Bay Detention Camp upon taking office in 2009 and was able to transfer two hundred detainees out of the facility, the prison remained open during both of his presidential terms due to congressional opposition and laws against imprisoning Guantánamo Bay prisoners in the United States itself. Obama's successorRepublican President Donald Trumpsigned a 2018 executive order keeping the prison open indefinitely. Joe Biden, elected president in 2020, promised to close the detention camp, but in early 2022, authorized millions of dollars in funding for the facility. By that point, nearly forty men remained imprisoned at Guantánamo Baytwenty-seven of whom had never been charged with war crimes. Their uncertain legal status, combined with the negative legacy of the US torture program, continued to generate controversy.

Enduring Legacies

Many legacy issues remain unresolved two decades after September 11, 2001, including the after-effects of the CIA's efforts to combat Al-Qaeda. In 2024, Khalid Shaikh Mohammed, the alleged mastermind of the 9/11 attacks, reached a plea deal with US military officials. In exchange for an admission of guilt, Mohammed would not be subject to the death penalty. The arrangement collapsed after US Secretary of Defense Lloyd Austin withdrew the plea deal. The evidence that formed the basis of the charges against Mohammed stemmed from information gathered by the FBI, not the CIA.

More detailed information concerning the CIA operation has become available to the public. In the 2024 trial of captured Al-Qaeda leader Abd al-Hadi al-Iraqiat the Guantanamo Bay Naval Air Stationattendees were provided detailed descriptions of a former CIA "black site" holding cell. Hadi had acknowledged responsibility for war crimes, such as employing civilians as combatants in Afghanistan. Forensic photography of various black site cells was displayed to jury members at Hadi's trial. They showed small, approximately six-foot chambers and windowless cells where prisoners were isolated.  

Bibliography

Ackerman, Spencer, Julian Borger, and Dominic Rushe. "Senate Report on CIA Torture Claims Spy Agency Lied about 'Ineffective' Program." The Guardian, 9 Dec. 2014, www.theguardian.com/us-news/2014/dec/09/cia-torture-report-released. Accessed 14 Oct. 2022.

Boghani, Priyanka. "Voices of Detainees and Dissent in New CIA 'Enhanced Interrogation' Documents." Frontline, 16 June 2016, www.pbs.org/wgbh/frontline/article/voices-of-detainees-and-dissent-in-new-cia-enhanced-interrogation-documents/. Accessed 24 Aug. 2024.

Epstein, Elisa, and Letta Tayler. "The Guantánamo Docket." Human Rights Watch, 9 Jan. 2022, www.hrw.org/news/2022/01/09/legacy-dark-side. Accessed 14 Oct. 2022.

"The Guantánamo Docket." The New York Times, 23 Sept. 2022, www.nytimes.com/interactive/2021/us/guantanamo-bay-detainees.html. Accessed 14 Oct. 2022.

"Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency." www.whitehouse.gov/news/releases/2007/07/20070720-4.html

Pratt, Simon Frankel. Normative Transformation and the War on Terrorism: The Evolution of Targeted Killing Torture and Private Military Contracting. Cambridge University Press, 2023.

"Review of DoD-Directed Investigations of Detainee Abuse." Office of the Inspector General of the Department of Defense, 25 Aug. 2006, www.fas.org/irp/agency/dod/abuse.pdf. Accessed 14 Oct. 2022.

Rosenberg, Carol. "Man Accused of Leading 9/11 Plot Was Denied a Lawyer, Then Confessed." New York Times, 27 Sept. 2023, www.nytimes.com/2023/09/27/us/politics/sept-11-torture-confession.html. Accessed 24 Aug. 2024.

Rosenberg, Carol. "War Crimes Hearing Gives Public Virtual Look Inside a Secret C.I.A. Prison." New York Times, 17 June 2024, www.nytimes.com/2024/06/17/us/politics/hearing-hidden-secret-cia-prison.html. Accessed 24 Aug. 2024.

Tayler, Letta, and Elisa Epstein. "Legacy of the 'Dark Side.'" Human Rights Watch, 9 Jan. 2022, www.hrw.org/news/2022/01/09/legacy-dark-side. Accessed 3 Oct. 2023.