A War Like No Other (23 page)

Boumediene
recognized that the essential function of the writ is to guard against arbitrary action by the executive. In the specific context of that case, the action in question was the detention of persons who denied that they had ever taken up arms against the United States.
Boumediene
does not preclude, however, and the principle of freedom requires, that the writ be available to guard against another form of arbitrary action by the executive: the failure to place on trial individuals who have been accused of
terrorism and who have been incarcerated for prolonged periods of time—in some cases, for more than a decade. A habeas proceeding authorized by
Boumediene
may find the prisoner seeking the writ to have fought for al-Qaeda and thus properly classified as an unprivileged enemy combatant but then go on to decide that under the principle of freedom the continued detention of this individual can be authorized only if he is tried and convicted of some specific crime. The constitutional right to freedom must, of course, accommodate claims of military necessity, but never in a way that relieves the judiciary of its duty to scrutinize these claims with care and to limit the sacrifice of freedom to the smallest possible domain.

Prologue to Chapter 7

Trevor Sutton

The idea that torture has no place in a civilized society emerged in the Enlightenment and is as old as the American Republic itself. The framers’ ban on “Cruel and Unusual Punishments,” enshrined in the Eighth Amendment, was not an abstract concern: European monarchies routinely and openly prescribed torture-based punishments into the eighteenth century. Even after torture came to be regarded as a barbaric practice in the West, some governments—Imperial Russia in particular—continued to torture dissidents, radicals, and terrorists behind closed doors.

Although the United States never reached the depravity of the tsars, it is a sad truth that during the eighteenth and nineteenth centuries federal and state officials engaged in practices that today seem self-evidently cruel and unusual. These practices did not take the form of criminal sanctions, where the text of the Eighth Amendment was clearly prohibitive, but rather occurred in the context of police interrogation. This was especially the case in the South during the antebellum and Jim
Crow eras, where violence was an essential element of racial oppression. Of course, in the cities of the North, too, use of the “third degree” against criminal suspects was routine for much of American history.

Over the course of the twentieth century, the systemic use of pain-based interrogation techniques in the United States ebbed considerably. Today, there exist statutory prohibitions on torture at both the state and federal levels, and at the level of international law the United States has ratified the United Nations Convention against Torture. Many actors contributed to this decline in officially sanctioned brutality, including civil rights activists, elected officials, the press, and public commissions of inquiry—most famously the Wickersham Commission created by President Herbert Hoover. Nevertheless, the role of the courts in ending torture was essential. Of key importance is the celebrated 1936 case
Brown v. Mississippi,
in which the Supreme Court unanimously found that a confession extracted through police violence—specifically, flogging—could not serve as evidence of guilt, and that a conviction on such grounds violated the Due Process Clause of the Fourteenth Amendment. Another important development was the 1952 case
Rochin v. California,
in which the Court overturned the conviction of a defendant who had been forced to vomit up narcotics against his will, on the reasoning that such conduct “shocks the conscience.”

That the federal judiciary played an important role in limiting the use of torture by state agents is not surprising: many of the scenarios under which official torture commonly arises relate to areas of governance traditionally subject to judicial oversight, such as police interrogation and criminal punishment. But the kind of executive action examined in this chapter, “Torture and Extraordinary Rendition,” does not fall within these comfortable bounds. Rather, the essay discusses torture carried out by U.S. officials outside U.S. territory, or by foreign
governments on behalf of the United States, to collect intelligence about foreign extremist organizations suspected of plotting terrorist attacks.

Although the parallels between official torture in the counterterrorism context and its use in purely domestic contexts seem obvious, the judiciary has been reluctant to extend the prohibition of torture into the realm of national security. This wariness, documented in “Torture and Extraordinary Rendition,” is lamentable but not wholly unexpected. From as early as the
Insular Cases,
the federal courts have approached extraterritorial application of the Constitution with caution. But with respect to victims of torture committed outside the United States, the judiciary has avoided reaching even this question of extraterritorial reach, and has instead ruled against the victims on the basis of discretionary doctrines of abstention—specifically, an extension of the state secrets privilege, and a novel reading of the “special factors” exception to the availability of damages under a
Bivens
action. As the essay observes, both of these bases for dismissal are framed so broadly that they could easily “degenerate into a free-floating political question doctrine” barring review of any suit that touches on the political branches’ foreign affairs and war powers.

This refusal on the part of the judiciary to adjudicate questions of fundamental rights through self-imposed procedural obstacles bears a striking resemblance to an earlier concern of Owen Fiss: the Burger and Rehnquist Courts’ paring back of the structural injunction, and with it the role of the federal courts in redressing civil rights violations, through judicially created rules of abstention. The Supreme Court’s retrenchment on injunctive relief in the final decades of the twentieth century was presented as exercises in humility and comity, but its effect was hardly modest: it served to marginalize the role of the judiciary in one of its areas of core competence. The same critique can
be leveled at the judicial hand washing discussed in “Torture and Extraordinary Rendition.” In Fiss’s view, torture, like racial segregation, is too grave an offense to constitutional values to entrust its prohibition to the political branches.

On December 9, 2014, the nation was delivered a chilling reminder of the consequences of unquestioning deference to the executive’s national security policies. On that day, the Senate Select Committee on Intelligence publicly released a formerly classified report on the CIA’s interrogation and detention program under the Bush administration. The report described the deliberate and systematic use of physical and mental torture against suspected terrorists in U.S. custody, including waterboarding, prolonged placement in painful “stress positions,” and a practice known as “rectal feeding,” in which liquids are pumped into an individual’s large intestine via a tube inserted into the rectum. The Senate report was greeted with widespread outrage and may well lead to a tightening of the legislative and policy regimes prohibiting torture. But as Fiss makes clear in his essay, even robust oversight by Congress is no substitute for open and public trials and an independent, assertive judiciary willing to protect fundamental rights even in times of exigency. Whether the executive and Supreme Court will permit the judiciary to play such a vital role is, lamentably, very much an open question.

Chapter 7

TORTURE AND EXTRAORDINARY RENDITION

I
n this essay, I focus on one of the most egregious of all abuses associated with the War on Terror—the policies and practices that put into doubt America’s commitment to prohibiting torture. The ban on torture is embodied in a number of international instruments, most notably the 1984 Convention against Torture,
¹
signed by the United States in 1988, and also in the criminal statutes enacted to implement that treaty.
²
Yet it is important to understand, so that we can be clear about the magnitude of the wrong, that the rule against torture did not await the arrival of the 1984 convention and its implementing statutes; it is rooted in the Constitution itself.
³

The Eighth Amendment prohibits cruel and unusual punishments, and torture would surely meet the standard of cruel and unusual. Although some may claim that torture inflicted for the purpose of extracting information from a person held in custody might not be deemed a “punishment” and thus is beyond the scope of the Eighth Amendment, I insist that such conduct
is prohibited by an implicit premise of the Eighth Amendment. Certainly, if we cannot torture someone who has been judged to have broken the law, we cannot torture someone who we only suspect has broken the law or who we believe is in possession of information that might enable us to prevent or punish unlawful acts. Immanent in the Eighth Amendment is a principle—let us call it the dignity principle—that denies state officers the power to treat inhumanely anyone in their custody.

A similar regard for human dignity can be found in the Fifth Amendment. In the broadest of terms, that amendment denies the state the authority to deprive any person of “life, liberty, or property without due process of law.” This norm has been construed to prohibit not just unfair procedures but any state action that shocks the conscience or offends an elemental regard for the humanity of persons in state custody. The phrase “shocks the conscience” was used by the Supreme Court to denounce police action that consisted of pumping the stomach of a suspect.
⁴
The substantive dimensions of due process have also been manifest in decisions striking down laws that denied parents the right to send their children to private schools
⁵
and, more recently, that denied consenting adults the right to engage in intimate sexual conduct.
⁶

As an expression of the dignity principle, the constitutional ban on torture of the Fifth and Eighth Amendments is an absolute. It focuses on the intrinsic quality of the state practice—its sheer inhumanity—and does not vary according to the putative value of the information sought. The constitutional ban on torture cannot be overridden or relaxed because the interrogator believes he might be able to extract information that will save an innocent life or, for that matter, countless lives. The harm to our cherished values would be far greater than the benefit that might possibly be obtained. At issue is nothing less than the ideals that define us as a nation.

Bush on Torture

President George W. Bush declared that he was opposed to torture, yet he governed in a way that put his underlying commitment in doubt. He declared his opposition to torture in 2004,
⁷
almost three years after he announced the War on Terror, in September 2001, and did so in a most defensive manner—in response to a public outcry, initially provoked by the publication of the Abu Ghraib photographs and then compounded by the leak of internal memoranda of the Department of Justice and the Department of Defense that took the proverbial “gloves off” government interrogators.
⁸

The first of these memoranda was prepared by John Yoo and signed by Jay Bybee.
⁹
Bybee was then an assistant attorney general in charge of the Office of Legal Counsel and Yoo was a member of his staff. The memorandum was sent to the White House in August 2002. The infliction of physical pain, Yoo and Bybee said, amounted to torture only when it was “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of a bodily function, or even death.”
¹⁰
This requirement was derived not from an understanding of judicial doctrine regarding the range of permissible interrogation techniques but rather from an extraneous source—regulations defining the conditions for paying medical benefits. In fact, it was in direct contradiction with the federal statute prohibiting torture, defined as an “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering,” including threats of imminent death.
¹¹

The Department of Defense memorandum, prepared by William Haynes, then general counsel of the department, and dated November 27, 2002, sought to establish guidelines for
interrogating prisoners being held at Guantánamo Bay.
¹²
It divided a broad range of interrogation techniques into three categories. The practices in the first two categories, which included round-the-clock interrogations lasting up to twenty hours and the use of stress positions such as standing for up to four hours, were deemed lawful and available to the Guantánamo interrogators. The third category included practices generally understood to be torture, including waterboarding, a technique that used a wet towel and dripping water to induce the perception of suffocation or drowning. Haynes said that the practices in this third category were forbidden “as a matter of policy . . . at this time,” though he was quick to add that they “may be legally available.”
¹³
Secretary of Defense Donald Rumsfeld approved Haynes’s recommendations with a handwritten note on the Haynes memorandum indicating, “I stand for 8–10 hours a day. Why is standing limited to 4 hours?”
¹⁴

The announcement of the guidelines proposed by Haynes and approved by Rumsfeld provoked controversy within the military. As a result, a high-level working group was assembled in the Department of Defense, and on April 16, 2003, Secretary Rumsfeld issued a new directive identifying the interrogation techniques that would be allowed at Guantánamo. Seventeen of those techniques were allowed by one of the Army Field Manuals then in force. Seven techniques went beyond the manual, and in so doing once again put the rule against torture in doubt.
¹⁵
To further loosen the reins, Rumsfeld’s directive acknowledged at various points that some had contended that the techniques authorized were inconsistent with protections afforded to POWs under the Third Geneva Convention. The secretary instructed the interrogators to take into consideration such contentions, while at the same time insisting that the Guantánamo detainees were not POWs but unlawful enemy combatants whose
treatment was not governed by the Third Geneva Convention but only by the lesser requirement of humane treatment imposed by the Fourth Geneva Convention.