Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The Bush administration maintains that it cannot publicly discuss or even name the harsh interrogation techniques used by the CIA to break the silence of “high value” al-Queda captives like Khalid Sheikh Mohammed, who devised the Sept. 11, 2001, attacks. Recently, Michael Mukasey’s nomination to be attorney general ran into trouble when he declined senators’ requests for his opinion on the legality of waterboarding � forced inhalation of water, causing choking and asphyxiation � a technique reportedly used by the CIA on Mohammed and a few others. Mukasey was confirmed, but controversy about the CIA’s methods of interrogating al-Queda leadership, and the official secrecy about them, continues. The Bush administration and its supporters typically offer two reasons why the CIA’s interrogation methods must be secret. Neither is convincing. The principal justification is a variation on the tune the administration has played for years � opposing us means aiding the enemy. The other justification is protecting CIA interrogators from potential liability. President Bush has repeated that the administration cannot discuss specific methods because “it doesn’t make any sense to broadcast to the enemy what they ought to prepare for and not prepare for.” As another official put it, the government cannot “publicize to the enemy what practices may be on the table and what practices may be off the table. That will only enable al-Queda to train against those that are on or off.” Mukasey, Alberto Gonzales and others have made like claims. A weak rationale Administration officials and supporters often frame the question as whether to disclose the precise operational detail about exactly how the CIA interrogates al-Queda leaders. This is a red herring. There is no doubt that this information should be secret. But the real question is whether more general information should be public, such as the names of approved and prohibited CIA interrogation techniques and the administration’s written attempts to explain why specific techniques do or do not violate laws prohibiting “torture” and “cruel, inhuman or degrading” treatment. The rationale for keeping secret this more general information � the same type of information that is already publicly available concerning U.S. military interrogations � is quite weak. Countless news stories based on leaks by executive branch officials and other sources have confirmed that, in 2002, Bush authorized the CIA to use waterboarding, sleep deprivation, slapping, shaking, extreme temperatures, refusal of pain medicine for injuries, deafening noises or bright lights, sensory deprivation and “stress positions,” in which uncomfortable body positions are prolonged. Although more recent leaks suggest that the CIA has voluntarily stopped using some or all of these, al-Queda would have to be deaf, dumb and blind not to believe already � notwithstanding the administration’s refusal to answer questions officially � that its leaders might be subjected to these methods. The executive branch is legally entitled to maintain the secrecy of information that has been leaked to the media. But the leaks about CIA interrogation techniques have been so numerous and so specific that it strains credulity to think that officially confirming general information about them would provide the enemy useful information. The rationale for secrecy about waterboarding is particularly unconvincing. Waterboarding has been publicly lauded by a CIA director (a “professional interrogation technique”) and Vice President Cheney (“a no-brainer”). If al-Queda is actually training to resist U.S. interrogation methods, it’s already a no-brainer that waterboarding should be part of its curriculum. The United States has also identified publicly some specific CIA techniques as illegal, therefore allowing al-Queda to understand the outer limits of CIA authority. A 2007 executive order prohibits abuses such as torture, murder, mutilation, rape, sexual humiliation and denigration of religion. Even if our government named and described every authorized and prohibited technique, al-Queda would still not know with certainty which are in fact “on” or “off the table.” The risk of illegal abuse is inherent in unleashing the government to zealously hunt bad guys and extract information from them. Our government is no exception. Al-Queda’s uncertainty about what to expect in CIA captivity has surely been heightened by leaks describing secret CIA interrogation centers in unnamed countries, closed to anyone except a few interrogators and guards � places that sound conducive to abuse. A second justification for secrecy is implicit in the comments of some executive branch officials and administration supporters. They imply that it would be wrong to disclose the details of the CIA interrogation program or revoke its legal justification at this point because front-line CIA field operatives would be exposed unfairly to legal jeopardy. It certainly would be unfair to punish field operatives for implementing policies declared to be legal and vital to national security by the highest government officials, but this concern has already been addressed. Laws passed in 2005 and 2006 should effectively shield CIA field operatives from most or all criminal and civil liability arising from the interrogation and detention program. It appears that only higher-ups remain on the hook for any lawbreaking. This, and the fear of diplomatic and political fallout, are likely the real reasons the administration refuses to provide even general information about the CIA’s interrogation tactics. Andrew Kent is an associate professor at Fordham University School of Law.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.