Public Policy Analysis: Interrogation, Torture, and Accountability

Introduction

The definitions of some terms, such as torture, are not clearly defined in law. Whether a given action constitutes torture depends on the initial objective rather than on the actions themselves. After the rules for interrogation were established, they were changed several times to permit additional actions. Without clearly defined terms, the door is opened to confusion and misconception about what is allowed and what is prohibited by law. Policies can be altered based on simple misunderstandings, which can worsen situations rather than bring improvement.

Numerous reports documented slapping, kicking, beating, stripping of clothing, chaining of hands and feet, confinement in dark cells, and exposure to extreme temperatures, among other actions. These reports established that abuse of detainees did occur.

Chronology of Facts

Detainees were falsely imprisoned. Military intelligence officers admitted that between 70% and 90% of detainees had been imprisoned by mistake.

An Executive Order signed by President Bush authorized interrogation techniques including sleep management, use of military working dogs, stress positions such as half-squats, environmental manipulation such as loud music, and sensory deprivation through the use of hoods. This order was revised in May 2004.

The Geneva Convention rules of wartime forbid torture and require humane treatment of enemy captives. These rules are intended to protect captives, regardless of their country of origin, from torture.

Forced interrogation is an inferior technique that yields information of questionable reliability. A detainee who genuinely lacks the needed information may tell interrogators what they want to hear simply to stop the mistreatment. Alternatively, a detainee who does possess the information but fears for family members back home may provide false information in an attempt to satisfy both sides.

On February 7, 2002, President Bush signed a memorandum stating that the Geneva Convention rules did not apply to the conflict between the United States and al Qaeda in Afghanistan or elsewhere. The stated justification was that al Qaeda was not a high contracting party to the Geneva Conventions.

The Torture Victims Protection Act incorporates the Convention Against Torture (CAT) into U.S. law. It defines torture 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." Under this definition, if causing pain is not the primary objective, the actions do not constitute torture even if harm results. The accompanying legal memo held that any U.S. person accused of torture who was acting pursuant to orders from the commander in chief could invoke "the right to self-defense" as a defense, given that the nation was under attack.

Military police personnel had not received training in detention or internment operations and had little or no instruction on the Geneva Convention rules applicable to prisoners of war.

There was no formal interrogation policy beyond the Army Field Manual, which provided incomplete guidance.

Military staff were directed to escalate the level of interrogations. Policy was subsequently changed to permit stronger interrogation techniques, including dietary manipulation, sleep deprivation of up to twenty hours per day, isolation of up to thirty days, temperature adjustment, loud music, and stress positions.

Analysis

Responsibility must begin with the recognition that even under the best administrative arrangements, a considerable degree of irresponsibility in administrative actions is inevitable. Accountability to another person or body requires some agreement concerning the action or the intended outcome. As Friedrich argues, a principal cannot effectively bring about responsible conduct in public affairs unless elaborate techniques make explicit what purposes and activities are involved in every phase of public policy. The memorandum of February 7, 2002 stated that Geneva Convention rules did not apply to the conflict with al Qaeda because al Qaeda was not a high contracting party. It did not address whether individual detainees were exempted, and the Geneva Conventions themselves make no such exception. This represents both a clear conflict of policy and an absence of any precise definition of what constitutes membership in al Qaeda.

Assuming causality is a nonexperimental approach that posits a connection between the availability or level of a program and conditions within the target population (Rosenbloom). The legal definition of torture is insufficiently clear: it anchors the definition in the perpetrator's objectives rather than in the actual actions taken and fails to define the term severe or to specify how far conduct must go before it constitutes torture.

Process analysis concerns the manner in which a particular policy or program is implemented. The content of a policy and its impact on those affected can be modified, elaborated, or even negated during implementation. The Executive Order authorizing specific interrogation techniques did not clearly define the limits of those techniques, leaving critical boundaries undefined.

Implementation evaluation depends on policy analysis; it assesses whether the implementation of a policy is appropriate rather than merely whether it achieves its intended impact. The evaluation differs according to perspective — managerial, political, or legal. The forced interrogation techniques employed yielded information of questionable reliability. The approach was driven by political considerations while disregarding both the legal constraints and sound management of the interrogation process.

General conclusion: Terms should be fully defined so that little doubt or confusion remains about their meaning, scope, and applicability.

Recommendation: Terms should be defined by committees of at least ten participants in order to bring greater breadth and critical scrutiny to the definitional process. Committee-based definition produces more thorough understanding and reduces the risk of exploitable ambiguity.