Tortured Logic: The (Il)Legality of United States Interrogation Practices in the War on Terror

Abstract

Author's note: This article was written in 2004, before Abu Ghraib, waterboarding, and the so-called "torture memos" had come to light. It examines the legal status of "stress and duress" ("S&D") techniques that were reportedly used at Bagram Air Force Base in Afghanistan and at other undisclosed locations after 9/11. In 2009, President Barack Obama signed Executive Order 13491, prohibiting any U.S. Government agent or agency from using S&D, waterboarding, and other abusive interrogation techniques.

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It has been said of torture that "[n]o other practice except slavery is so universally and unanimously condemned in law and human convention." Perhaps no country embodied this ideal more than the United States. For much of its history, the US shunned torture and other forms of coercive interrogation. Then came September 11th, 2001. The shock of that disaster, coupled with the threat of further attacks by al-Qaeda and the proliferation of nuclear, chemical and biological weapons, fueled an unprecedented re-examination of torture's legal and moral status. As a result, torture and other forms of coercive interrogation quickly lost their stigma in the post 9/11 environment.

This growing acceptance of torture and coercive interrogation had real-world consequences. By all accounts, US interrogation policy underwent dramatic changes after September 11th. At the time, these reports raised crucial and unresolved questions about the legality of "moderate" forms of mental and physical coercion generally, and US interrogation practices in particular. Does S&D amount to torture under international and domestic law? If not, does it nevertheless violate important human rights norms? Legality aside, should the US employ harsher methods, as Judge Posner argues, when "the stakes are high enough"? Or is the US committed to a doctrinaire interpretation of human rights, no matter how grave the risk to national security? Are there effective methods of interrogation that are consistent with US law and international human rights?

This article analyzes these issues in the context of September 11th and the ongoing war on terror. Section II discusses the recent shift in US interrogation policy, and examines how the unique threat posed by al-Qaeda led the US to consider harsher interrogation techniques. Section III discusses the status of S&D under international law, looking in particular at recent decisions of the European Court of Human Rights and the Supreme Court of Israel. Section IV discusses the legality of S&D under US law. Section V analyzes the legality of US interrogation practices. Section VI evaluates a common hypothetical used to justify S&D: the "ticking time bomb" scenario. Section VII offers my conclusions and recommendations. Although alleged US interrogation practices examined here probably do not rise to the legal definition of torture, they are nevertheless illegal under international and domestic law.

Keywords: Torture, Interrogation, International Human Rights, Terrorism, Stress and Duress