Clearing the wreckage: the Army Field Manual and The Dish’s “appropriate” interrogations … vs Amnesty

I wanted to follow up on the evident conflict between what The Dish expects in prisoner interrogations, and what our legal principles expect of us. Sullivan wrote in a good 2005 essay [no longer online, unfortunately] on torture for The New Republic:

Will a ban on all “cruel, inhuman, and degrading treatment” render interrogations useless? By no means. There are many techniques for gaining intelligence from detainees other than using their bodies against their souls. You can start with the 17 that appear in the Army Field Manual, tested by decades of armed conflict only to be discarded by this administration with barely the blink of an eye. Isolation, psychological disorientation, intense questioning, and any number of other creative techniques are possible. Some of the most productive may well be those in which interrogators are so versed in Islamic theology and Islamist subcultures that they win the confidence of prisoners and pry information out of them—something the United States, with its dearth of Arabic speakers, is unfortunately ill-equipped to do.

Um, one of the Army Field Manual‘s tactics is called “Establish Your Identity.” This means you lie to a detainee and tell him that you know for certain he is an infamous terrorist you’ve been looking for. Deliberately writing a Kafkaesque nightmare for a person you know to be innocent at least of what you accuse him of is apparently OK for The Dish. From what Sullivan has written over the last five years, I don’t know on what basis. And unlike for some of its other techniques, the Field Manual doesn’t even warn of any “oversight considerations” for this one.

Here are some of the names of the 17 tactics from the Army Field Manual, not including the restricted technique of Separation detailed in its controversial “M” appendix (which covers “isolation,” as Andrew mentioned, and some physical elements, and about which I’ll quote Amnesty International):

Emotional-pride-and ego-down
Fear Up
Emotional Futility [which is convincing the detainee that there is no hope for his situation or for an important aspect of his situation — this gets no warnings of any “oversight considerations” in the Field Manual]
Rapid Fire [questioning and interruption]
False Flag [convincing the detainee an interregator is not from the United States — this gets an “oversight considerations” warning]
Mutt & Jeff [ — gets an “oversight consideration” warning]

I can imagine any of the above earning the adjectives “cruel,” “inhumane” or “degrading.” I’m sure Andrew would agree with me that if any of them were stretched to creative extremities, or cleverly knotted with others in the Manual, the psychological technique would become a form of torture.

Even the positive-stimulus techniques in the Army Field Manual have problematic implications. I see an obvious one in the approach called “Emotional Love,” as part of which an interrogator might promise better treatment or some advantage for family members. This could subject a detainee to the guilt that by his act of omission, his family will experience some degree of more negative treatment, and that scenario has an area of overlap with international law’s basic concept of mental torture.

Putting aside these 17 techniques plus 1 restricted category of interrogation, that’s not the end of the problematic parts of this document, which includes passages like,

8-26. Similarly, supervisors should question the appropriateness of demeaning any racial group, including the source’s, to elicit an emotional response during an interrogation approach.

… In other words, “question” it, but an occasion may arise when it’s appropriate to berate the detainee with the n-word.

I agree with Sullivan that the techniques as outlined in the Field Manual, held back to a “reasonable” level, would not constitute torture. I would use the term “psychological pressure/coercion” … but The Dish usually reserves the word “coercion” for three purposes:

  1. to accuse those of favoring techniques with that label as pro-torture
  2. to accuse journalists of discussing techniques with that label as cowed by those in power into not using the word “torture”;
  3. to add a new dimension he personally labels “coercion” to the meaning of torture, whereby torture involves more than the international legal standard of “severe mental or physical suffering” ( — I hold to this phrase without the absurd legal re-definitions of Bybee, Yoo and others — ) but contains an attempt to rob the detainee of the power of his individual will.

I don’t feel that these uses of “coercion” are appropriate. Yes, there are reasons I see Andrew’s add-on to the torture definition as undesirable. However, there is also the problem that if we don’t have a word to distinguish an interrogation that uses psychological pressures from an interrogation using types of pressures that approach “severe” mental pain or suffering, we aren’t going to be as good at drawing a line. If The Dish thinks that “coercion” and “coerciveness” have been marred by the Bush administration or by the Gestapo, or by whomever, then Andrew should come forward with other language, and try to avoid it being called Orwellian.

As for whether physical “coercion” can be different from torture … Although I can’t say how quickly we come to the threshold for the slippery slope, it would be insanely stupid to believe that any short-term and sparsely repeated change which involves the smallest degree of physical discomfort (such as moving a person to room for questioning that’s totally gray and only 50°F) counts as torture, even though the discomfort is not voluntarily submitted to. But is any physical discomfort a form of “coercion,” if it isn’t torture? It seems so according to Article 17 of the Third Geneva Convention.

Andrew himself has said that he is fine with “roughing up” … And although I can easily see him accusing someone who typed that of revealing a “neofascist sentiment,” I’ll just say that until I know exactly what he meant by the phase “roughing up,” I’m probably not OK with it. I do, however, agree with him that not every technique that involves physical discomfort is inherently torture … But again, there is a problem of finding the right word to distinguish it from torture, if “physical coercion” or “physical pressure” or even “physical stimulus” sound too much like sanitized euphemisms.

… Maybe us Orwell fans should feel lucky on the whole that the proprietor of The Dish has appointed himself the one-man thought police for the word “coercion” — as well as for the less literal and specific, and therefore more dangerous, terms “enhanced” and “alternative.”

But sometimes The Dish forgets its high standards for the use of the word “coercion” — whereby it’s a philosophical concept for him that should be taboo for others, who only use it as a euphemism — and finds the word functionally useful in the way I’m talking about. In other words, The Dish occasionally uses “coercive” or “coercion” as a way to distinguish a physical or mental pressure from torture, while reminding us conscientiously that any such pressure can become torture. For example, Andrew wrote:

[T]orture cannot be defined by specific techniques and legally isn’t. Almost any coercive act sustained long enough against a person in captivity can become torture. Think of how we understand the drip-drip-drip of the “Chinese water torture” to  be torture. It’s not even, as the former vice-president would say, a splash of water on the face. It’s a mere drip. But even a drip, sustained long and relentlessly enough, can break a human being.

And I agree. Anything that is coercive — i.e., a pressure to help convince a person to stop not giving an answer or giving false answers — can also be a torture. But is the current Army Field Manual a good way to help prevent “coercive acts” from becoming tortures — physical or mental — in the hands of interrogators? … I think the Manual needs at least some rewriting in order to stipulate a few more safeguards.

In fact, Amnesty International and other human rights groups don’t agree with The Dish that the Army Field Manual represents an abandoned, trusted norm, which can provide a standard of reasonable treatment for interrogation. From AI’s website:

Amnesty International has raised concerns regarding the use of the amended The Army Field Manual and considers that it is ‘not compatible with the international prohibition of torture or other ill treatment.’

AI criticizes the 2006 version, particularly Appendix M, but I think much of what is in this appendix was spread around the 1992 version of the Field Manual. I don’t know whether they then raised some of the same objections. They skip mentioning the 1992 version in their “history” of the Field Manual and yet speak of the 2006 revisions as though they were sinister. In this article, they focus our attention on Appendix M and only touch on the other interrogation tactics in the Manual by discussing this sinister Appendix. Anyway, here’s a chunk of their objection:

Physical separation is limited to 30 days of initial duration but may be extended with permission. ‘Field Expedient Separation’ is limited to 12 hours of duration at “the initial interrogation site. This limit does not include the time that the goggles or blindfolds and earmuffs are used on detainees for security purposes during transit and evacuation.” The manual then goes on to say that the detainee must be allowed only 4 hours of continuous sleep every 24 hours. The manual also suggests that ‘HUMINT collectors’ (Human Intelligence Collectors) employ combinations of ‘futility’, ‘fear-up’ and ‘incentive’ in conjunction with ‘separation’.

What are the concerns with this method?

The regulations outlined in appendix M do not comply with the Geneva Conventions, nor human rights protections as outlined in such international instruments as The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant of Civil and Political Rights and the Universal Declaration of Human Rights.

  1. Solitary Confinement: It has been widely documented that solitary confinement is a cruel practice which causes permanent psychological damage to those who have been treated in that manner5. Solitary confinement alone, even in the absence of brutality can cause emotional damage, hallucinations, delusions, depersonalisation and declines mental functioning6. It has also been documented that the circumstances surrounding the detention has a significant impact on the psychological damage experienced by the detainee, such as not knowing why they are being detained in such a way which is common in Guantanamo. Solitary confinement is banned under Common Article Three of the Geneva Conventions as it amounts to cruel, inhuman or degrading treatment or punishment. Manfred Nowak who is the U.N. Special Rapporteur on Torture addressed his concerns about detainees being held in solitary confinement in October of 2008 where he commented that it was ‘deplorable’ that individuals were held under those conditions7.
  2. Sensory Deprivation: Although the Army Field Manual says it prohibits sensory deprivation, what is not mentioned is the most troubling part of this section of The Manual. The Manual describes sensory deprivation as the ‘complete deprivation of all sensory stimuli’ (emphasis added). This play on words means that it is acceptable according to the Army Field Manual to deprive detainees of one or two senses at a time or all as long as it is not ‘excessive’ which of course is open to interpretation. The manual describes placing goggles (blacked out), earmuffs and blindfolds on the detainees. It also allows, for example, total visual deprivation for extended periods of time. The Geneva Conventions prohibit cruel treatment.
  3. Sleep Deprivation: Appendix M of the Army Field Manual allows for sleep deprivation which was described by Amnesty as constituting cruel, inhuman and degrading treatment8. The Army Field Manual describes the practice of not allowing detainees to sleep for more than 4 hours per night over 30 days, which can be prolonged upon approval. This technique has been used to break the detainee down both physically and psychologically. Sleep deprivation causes many psychological and physical issues such as headaches, high blood pressure, stress, lowered immunity, impaired verbal processing and complex problem solving. It has also been known to cause depression, irritability and a reduced sense of wellbeing. The Article 22 of the Third Geneva Convention outlines that a prisoner of war cannot be held in conditions that are prejudicial to their health.
  4. Fear-Up: Although not outlined in appendix M, Chapter 8 of the Army Field Manual outlines a technique called ‘fear-up’ which is used in conjunction with ‘Separation’ to create fear and hopelessness within the person detained. “In the fear-up approach, the HUMINT collector identifies a pre-existing fear or creates a fear within the source.”9. It is also used in conjunction with ‘emotional love or hate approaches’ where the love of the detainee to their family is exploited to break them down. For example, the HUMINT collector may ask “You know what can happen to you here?” Then follow on with questions about his family such as “I wonder how your family is getting along without you”10. This practice of attacking the detainees family and engaging in activities to wilfully cause fear is cruel and inhumane.

Separate Categories for Detainees

Appendix M does not apply to those the US deems is protected by the Geneva Conventions, that is prisoners of war, only to those held as ‘unlawful enemy combatants’ which was a term created by the former US Administration in an attempt to prevent detainee protection under the Geneva Conventions. Under International Law, anyone detained in enemy hands must be either covered by the Third Geneva Convention which outlines Prisoner of War Status or the Fourth Geneva Convention under the laws of war which covers civilians. Where a person has been detained outside a theatre of armed conflict, then standards relating to the detention of prisoners and international human rights law apply. There is no intermediate status and no one can fall outside the law.

Human Rights Experts Voice Their Concerns

Many Human Rights organisations such as Amnesty International, Human Rights Watch, the National Lawyers Guild, the Centre for Constitutional Rights (CCR), Physicians for Human Rights (PHR) have all publicly raised their concerns. Hina Shamsi, an ACLU attorney stated that portions of the Army Field Manual were ‘deeply problematic’ and ‘would likely violate the War Crimes Act and Geneva’11.

I’m not vouching for all of the above criticisms of the Army Field Manual. My point is that the nature of AI’s criticisms above is congruent with The Dish’s criticisms of Bush interrogation policies, so this should give The Dish and its readers pause.

Yet, Andrew commended the Army Field Manual standards when he wrote his essay on torture for 2005 and raised no objection to the changes in the 2006 version, since the Manual mentioned the Common Article 3, which is in all four Geneva Conventions. His only other worry was about a “classified annex” to the Field Manual that hasn’t come into being.

I’m not accusing Andrew of a crime here, but clearly he has oversimplified the resources we are now using to avoid torture in our standard operating procedures, and it probably doesn’t help his critical thinking on the matter that he can’t parse those resources with variations on “coercive questioning” — since that for him is automatically code for torture.

I do have a problem with the hypocrisy of his touting the Geneva Conventions [as opposed to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] as inviolable law on these matters whenever he brandishes them at people he calls “pro-torture.” Some post titles: “The Geneva Conventions Apply When We Say So”, “Bush vs Geneva”, “Is the U.S. Now a Non-Geneva State?” , “If Americans Will Not Defend the Geneva Conventions…” “The Right vs the Geneva Conventions”

Sullivan rejects the Third Geneva Convention in a fundamental way, by choosing what text we can ignore in Article 17, which says says among other things that prisoners of war cannot be “exposed to unpleasant or disadvantageous treatment of any kind.” That messing with Article 17 would signify a fundamental rejection of the Conventions is something Amnesty knows well. The Conventions give us only two categories of treatment, one for civilians and one for uniformed fighters. Yet, Sullivan must believe he has not violated but somehow transcended this element of Geneva in deciding, along with Bush and Rumsfeld, that

Enemy combatants need not be accorded every privilege granted legitimate prisoners of war; but they must be treated as human beings.

He assures us that Common Article 3, which is found in the separate sets of requirements for both POWs and civilians, can tell us the guiding principles for the treatment of alleged terrorist detainees, and I agree … except that having guiding principles is not enough. And the solution to this problem is not to be irresponsible and sell ourselves on easy answers like “You can start with the 17 [techniques] that appear in the Army Field Manual” when what’s in there is in fact not really so easy.

We shouldn’t be satisfied with the Field Manual, or any regulatory document, primarily because it’s a convenient tool to shove in the face of someone who says he is pro-torture (Krauthammer) or who we’ve convinced ourselves is pro-torture ( — for Andrew, as opposed to a less fervid voice like Marty Lederman, that means almost everyone at The National Review). To do so is fatuous and self-involved, increases anger and bitterness in American discourse and does a disservice to our common cause.

Andrew does like to talk about Common Article 3, but The Dish, besides giving its blessing to “roughing up” — however far that goes — “making them uncomfortable,” “grueling interrogation,” and “psychological disorientation,” would be willing to support “any number of other creative techniques” that employ negative stimuli to get answers. Such recommendations for “appropriate” interrogation do not seem to partake in the spirit of Article 3 and indeed seem initially posed against the Article’s intent. I think, right now, that this conflict is natural. If that’s so, The Dish has never showed humility or constructiveness in acknowledging it.

Instead, Sullivan assures us, about the Article banning “outrages upon personal dignity, in particular humiliating and degrading treatment,” that

Common Article 3 is not vague. It is crystal clear.

and that

the essential fiction that the president is telling about his position on military interrogation [is] that he wants “clarity” for interrogators. There already is clarity.

Then, would The Dish argue that “Amnesty International, Human Rights Watch, the National Lawyers Guild, the Centre for Constitutional Rights (CCR), Physicians for Human Rights (PHR)” are not acting in good faith when they say that they don’t see this clarity in the manual for military interrogations?

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