Torture nation, torture law

Georgetown Law Journal

Volumn 97, Issue 4, 2009, Pages 1001-1056

  Parry, John T ^a  

^a LEWIS AND CLARK LAW SCHOOL   (United States)

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EID: 67549099477     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (499)

1. U.S. DEP'T OF STATE, INITIAL REPORT OF THE UNITED STATES OF AMERICA TO THE U.N. COMMITTEE AGAINST TORTURE ¶ 6 (1999).
2. U.S. DEP'T OF STATE, SECOND PERIODIC REPORT OF THE UNITED STATES OF AMERICA TO THE U.N. COMMITTEE AGAINST TORTURE ¶ 6 (2005).
3. Id.
4. Id. ¶17.
5. Id. ¶ 4.
6. My discussion of the ratification of the United Nations Convention Against Torture illustrates this point. See infra notes 222-67 and accompanying text.
7. Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1682,1726-27, 1746 (2005).
8. Id.
9. Seth F. Kreimer, Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror, 6 U. PA. J. CONST. L. 278, 300 (2003).
10. Harold Hongju Koh, A World Without Torture, 43 COLUM. J. TRANSNAT'L L. 641, 661 (2005).
11. David Luban, Liberalism, Torture, and the Ticking Bomb, 91 VA. L. REV. 1425, 1461 (2005).
12. For a similar analysis, see James Fonnan, Jr., Exporting Harshness: How the War on Crime Has Made the War on Terror Possible, N.Y.U. REV. OF L. & SOC. CHANGE (forthcoming 2009).
13. For discussion of recent uses of torture by England, France, Israel, and Spain, see John T. Parry, Torture in the Modern West (Dee. 2005) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=899113. For a more specific discussion of how rale of law ideals accommodate state violence (if not necessarily torture), see John T. Parry, Torture Warrants and the Rule of Law, 71 ALB. L. REV. 885 (2008).
14. See Exec. Order No. 13491, 74 Fed. Reg. 4893 (Jan. 27, 2009) (rescinding a 2007 Executive Order passed by former President George W. Bush and redefining the standards and practices for the interrogation of individuals in the custody of the United States);
15. Exec. Order No. 13492, 74 Fed. Reg. 4897 (Jan. 27, 2009) (calling for the closure of the detention facilities at Guantanamo Bay Naval Base and dictating the disposition of detainees).
16. Sources on the treatment of Native Americans and enslaved African Americans are numerous. For a recent brief account that emphasizes the construction of a civilization-savage dichotomy and links it to the war on terror, see Charles R. Venator-Santiago, From the Insular Cases to Camp X-Ray: Agamben's State of Exception and United States Territorial Law, 39 STUD. L., POL. & SOC'Y 15, 24-25, 32-35 (2006).
17. Mr. Hull on the Filipinos: Iowa Congressman Says They Are Not Fit for Self Government-Spooner Bill a Mistake, N.Y. TIMES, Aug. 29, 1901.
18. See, e.g., Court to Try a Filipino: A Military Commission Will Sit in Judgment on a Bandit at Calamba To-day, N.Y. TIMES, Feb. 21, 1900, at 4;
19. Death for Filipino Bandits, N.Y. TIMES, Sept. 4, 1901, at 6;
20. Death for Luzon Bandits: Guerillas Caught by Col Smith Will Be Shot or Hanged, N.Y. TIMES, Dec. 13, 1899, at 1;
21. Filipino Bandits' Methods: Gen. MacArthur's Remarks on Their Inhuman Ways-Several To Be Hanged, N.Y. TIMES, Jan. 14, 1901, at 1;
22. Frederick W. Eddy, Obstacles to Order in the Philippines: Natives Abandon Open Warfare and Resort to Guerilla Methods, N.Y. TIMES, Oct. 7, 1900;
23. Roosevelt Speaks to Republican Clubs, N.Y. TIMES, July 18, 1900, at 7.
24. BRIAN MCALLISTER LINN, THE PHILIPPINE WAR, 1899-1902, at 300 (2000);
25. see also STUART CREIGHTON MILLER, BENEVOLENT ASSIMILATION: THE AMERICAN CONQUEST OF THE PHILIPPINES, 1899-1903, at 15, 91-93, 134, 179, 245-48 (1982).
26. MILLER, supra note 18, at 179-80, 188, 195, 241;
27. see also Death for Luzon Bandits, supra note 17 ("Some of the American officers think it worse than fighting Indians, owing to the difficulties of the country and the trouble of locating the enemy, who resort, when hard pressed, to the amigo dodge and hide their guns.").
28. PAUL A. KRAMER, THE BLOOD OF GOVERNMENT: RACE, EMPIRE, THE UNITED STATES, & THE PHILIPPINES 89 (2006);
29. see also Oscar V. Campomanes, Casualty Figures of the American Soldier and the Other: Post-1898 Allegories of Imperial Nation-Building as "Love and War," in VESTIGES OF WAR: THE PHILIPPINE-AMERICAN WAR AND THE AFTERMATH OF AN IMPERIAL DREAM, 1899-1999, at 146 (Angel Velasco Shaw & Luis H. Francia eds., 2002) (stressing the archive of materials that defined the Philippines and Filipinos as savage and incapable of governing themselves).
30. See Court-Martial of General Jacob H. Smith (Apr. 1902), in 1 THE LAW OF WAR: A DOCUMENTARY HISTORY 801 (Leon Friedman ed., 1972) [hereinafter THE LAW OF WAR]. General Smith was court-martialed, but his only punishment was immediate retirement.
31. See Id. at 799.
32. One soldier described the water cure in this way: "Now, this is the way we give them the water cure," he explained. "Lay them on their backs, a man standing on each hand and each foot, then put a round stick in the mouth and pour a pail of water in the mouth and nose, and if they don't give up pour in another pail. They swell up like toads. I'll tell you it is a terrible torture." Quoted in Paul Kramer, The Water Cure: Debating Torture and Counterinsurgency-A Century Ago, NEW YORKER, Feb. 25, 2008, at 38, 38.
33. See KRAMER, supra note 20, at 141-42, 152-54;
34. LINN, supra note 18, at 215;
35. MILLER, supra note 18, at 188-89, 203-08, 220, 225-26, 230, 238;
36. Andrew J. Birtle, The U.S. Army's Pacification of Marinduque, Philippine Islands, April 1900-April 1901, 61 J. MIL. HIST. 255, 265 (1997);
37. see also Court-Martial of Major Edwin F. Glenn (Apr. 1902), in THE LAW OF WAR, supra note 21, at 814, 814-16;
38. Reports Regarding the Death of Father Augustine de la Pena (Nov. 1902), in THE LAW OF WAR, supra note 21, at 830,830-41.
39. LINN, supra note 18, at 215, 223;
40. see also Court to Try a Filipino, supra note 17 (reporting on use of a military commission to try "a Filipino member of [a] guerilla band" and noting that "[t]he case is important as foreshadowing the policy of treating guerillas as bandits");
41. Death for Filipino Bandits, supra note 17 (demonstrating the looseness of the terms "bandit" and "guerilla");
42. Death for Luzon Bandits, supra note 17 ("It is expected that they will be speedily tried and either shot or hanged as an example, if convicted.").
43. See generally ANTI-IMPERIALIST LEAGUE, SOLDIERS' LETTERS: BEING MATERIALS FOR THE HISTORY OF A WAR OF CRIMINAL AGGRESSION (Boston, Rockwell and Churchill Press 1899). Paul Kramer suggests this collection is "questionable as a primary document." KRAMER, supra note 20, at 445 n.5. Indeed, the introduction to the collection states, "As it is often unable to verify their statements, or even to identify the writers, [the League] disclaims responsibility for their truthfulness. The letters are given for what they are worm."
44. MILLER, supra note 18, at 94.
45. Id. at 213. But see id. (suggesting few people actually died from the water cure).
46. Id. at 212.
47. Id. at 213-15;
48. see also Tell of "Water Cure" Cases: Witnesses Give Further Testimony Before the Senate Committee on the Philippines Regarding Filipino's Treatment, N.Y. TIMES, June 13, 1902, at 3;
49. Testified on "Water Cure": Graver Flint of Cambridge, Mass., Was a Witness Before the Senate Philippines Committee, N.Y. TIMES, Apr. 22, 1902, at 2;
50. The Water Cure Described: Discharged Soldier Tells Senate Committee How and Why the Torture Was Inflicted, N.Y. TIMES, May 4, 1902, at 13 (also asserting commanders were aware that torture was being used).
51. U.S. DEP'T OF WAR, CHARGES OF CRUELTY, ETC., TO THE NATIVES OF THE PHILIPPINES, S. DOC. NO. 205, at 1 (1902).
52. Id. at 2;
53. see MILLER, supra note 18, at 217. For a response to the Root report, see MOORFIELD STOREY & JULIAN CODMAN, SECRETARY ROOT'S RECORD: "MARKED SEVERITIES" IN PHILIPPINE WARFARE-AN ANALYSIS OF THE LAW AND FACTS BEARING ON THE ACTION AND UTTERANCES OF PRESIDENT ROOSEVELT AND SECRETARY ROOT (1902).
54. See S. Doc. No. 205, at 3;
55. see also KRAMER, supra note 20, at 140-41, 146-50 (discussing rationales for using the water cure and other forms of abuse, including mat such conduct was rare, that it was natives who actually committed the abuses, that Filipino forces had gone outside civilized standards and so surrendered all claims to mercy, and that these methods were a tactical choice for whites as opposed to a racial necessity for Filipinos). Root based his assertions on a letter written by Brigadier-General Frederick Funston, which Root quoted prominently and at length: I never had personal knowledge of the so-called "water cure" being administered to a native, or any other form of torture being used to extract information from them. Statements of this kind made by returned soldiers are simply braggadocio, and a desire to attract attention to themselves. It is my belief that the "water cure" was very rarely, if ever, administered by American soldiers. It was a matter of common knowledge that occasionally the Macabebe Scouts, when not under the direct control of some officer, would resort to this means of obtaining information as to the whereabouts of concealed arms and ammunition. They did this, however, on their own responsibility and without orders from their superiors The so-called "water cure," as it has been described to me by Macabebe soldiers, was by no means so severe an ordeal⋯. The method was merely to throw a native on his back, hold his nose with one hand, and pour water down his throat from a canteen or other vessel. It occasioned. nothing more than a few moments of strangling, and never resulted fatally. S. Doc. No. 205, supra note 30, at 3.
56. See BRIAN MCALLISTER LINN, THE U.S. ARMY AND COUNTERINSURGENCY IN THE PHILIPPINE WAR, 1899-1902, at 57-58 (1989);
57. MILLER, supra note 18, at 218, 258-59. For the records of the water cure and murder court-martials, see Court-Martial of Major Edwin F. Glenn, supra note 23 (imposing sentence of one-month suspension from command and fifty-dollar fine for use of the water cure "not as an exceptional circumstance, but as the habitual method of obtaining information from suspected insurgents");
58. Court-Martial of Lieutenant Preston Brown (June 1902), in THE LAW OF WAR, supra note 21, at 820-29 (imposing sentence of dismissal from the Army, five years of hard labor, commutation to a reduction in rank on the first lieutenants' list, and half-pay for nine months for a murder conviction);
59. see also Reports Regarding the Death of Father Augustine de la Pena, supra note 23, at 837 (concluding use of the water cure was not "justified by military necessity, and that there did not exist, at the time of its commission, a condition of emergency so instant, imperious, and overwhelming in its character as to justify" its use, but also finding no jurisdiction to bring charges).
60. GILES MACDONOOH, AFTER THE REICH: THE BRUTAL HISTORY OF THE ALLIED OCCUPATION 235. (2007).
61. For discussion of indiscriminate killing by American servicemen, see Id. at 237.
62. For discussion of rape, see Id. at 240. Discussion of destruction and theft of property by U.S. forces appears throughout the first half of the book.
63. Id. at 392-93;
64. see also Convention Relative to the Treatment of Prisoners of War, July 27,1929, 118 L.N.T.S. 343;
65. GEORGE G. LEWIS & JOHN MEWHA, HISTORY OF PRISONER OF WAR UTILIZATION BY THE UNITED STATES ARMY, 1776-1945, at 237 (1955) (discussing creation of the category "Disarmed German Forces" and the lesser rights they were granted outside the Geneva Conventions).
66. MACDONOGH, supra note 34, at 394.
67. Id. at 395, 397-404, 406-07. The majority of interrogators did not use these tactics.
68. See, e.g., Petula Dvorak, A Covert Chapter Opens for Fort Hunt Veterans, WASH. POST, Aug. 20, 2006, at Al.
69. See ALFRED W. MCCOY, A QUESTION OF TORTURE: CIA INTERROGATION, FROM THE COLD WAR TO THE WAR ON TERROR 21-25 (2006);
70. MICHAEL OTTERMAN, AMERICAN TORTURE: FROM THE COLD WAR TO ABU GHRAIB 42-50 (2007).
71. CIA, KUBARK COUNTERINTELLIGENCE INTERROGATION 1-2 (1963), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122/ index.htm#kubark [hereinafter KUBARK] (an online redacted version of the manual was made available to the public in 1997). For discussion of the research that led to Kubark, see MCCOY, supra note 39, at 21-53;
72. OTTERMAN, supra note 39, at 42-58. "Kubark" is a code name for the CIA.
73. See OTTERMAN, supra note 39, at 54.
74. KUBARK, SUPRA note 40, at 52-81.
75. KUBARK, SUPRA note 40, at 65-66. To that end, the manual recommends several tactics, many of which would be familiar to students of domestic police interrogation and many-perhaps most-of which comport with U.S. constitutional law. This is not to say mat these techniques are not coercive in important respects; they place enormous pressure on a suspect to disclose information.
76. Id. at 8.
77. Id. at 82.
78. Id. at 65.
79. Id. at 83.
80. See id.
81. Id. at 85.
82. Id. at 87.
83. See Id. at 90;
84. see also Id. at SO ("[A] subject who has finally divulged the information sought and who has been given a reason for divulging which salves his self-esteem, his conscience, or both, will often be in a mood to take the final step of accepting the interrogator's values and making common cause with him.").
85. See Id. at 90.
86. Id. at 91.
87. Id. at 94.
88. See id.
89. I am not claiming the CIA actually created a science of torture, only that Kubark adopts a scientific tone. For the argument that there is no science of torture, see DARIUS REJALI, TORTURE AND DEMOCRACY 373-84 (2007).
90. Interrogation, WASH. POST, Jan. 21, 1968, at Al. The victim in the photograph is notable for his indistinctiveness. Not only is he anonymous, but he is a Vietnamese every man, clad in "black pajamas" that identify him as a peasant, as Vietcong, or both. No space exists between the enemy and the general population. They simply blur together, so that anyone in black pajamas is always the subject both of protection and of suspicion.
91. Id.
92. Id.
93. Deborah Nelson & Nick Turse, A Tortured Past: Documents Show Troops Who Reported Abuse in Vietnam Were Discredited While Military Was Finding Evidence of Worse, L.A. TIMES, Aug. 20, 2006, at Al; Nick Turse & Deborah Nelson, Vietnam Horrors: Darker Yet; Declassified Papers Show U.S. Atrocities Went Far Beyond My Lai, L.A. TIMES, Aug. 6, 2006, at Al. For a good discussion of the evidence of torture in Vietnam, as well as the difficulty of sorting it out, see REJAU, supra note 55, at 172-74,581-91.
94. REJAU, supra note 55, at 174. Gary Solis suggests the sentences handed down in cases that went to trial were fairly severe, but he notes that many cases were never investigated or prosecuted, and that appeals and clemency led to significant sentence reductions.
95. See generally Gary D. Solis, Military Justice, Civilian Clemency: The Sentences of Marine Corps War Crimes in South Vietnam, 10 TRANSNAT'L L. & COITTEMP. PROBS. 59 (2000).
96. See Don Luce, The Tiger Cages of Viet Nam, in TORTURE, AMERICAN STYLE 9 (Margaret Power ed., 2004), available at http://www.historiansagainstwar.org/resources/torture/luce. html;
97. Robert N. Strass-feld, American Innocence, 37 CASE W. RES. J. INT'L L. 277, 295-96 (2006);
98. The Cages of Con Son Island, TIME, July 20,1970, at 20,21.
99. MCCOY, supra note 39, at 60-61.
100. OTTERMAN, supra note 39, at 64. Of course, in the Philippines, U.S. forces claimed the water cure was a local or Spanish practice.
101. See supra note 32. For discussion of European use of water torture, see REJAU, supra note 55, at 280-85.
102. MCCOY, supra note 39, at 63;
103. see also MARK MOYAR, PHOENIX AND THE BIRDS OF PREY: THE CIA'S SECRET CAMPAIGN TO DESTROY THE VIET CONG 90, 92, 96 (1997);
104. OTTERMAN, supra note 39, at 65-66.
105. JOHN RANELAGH, THE AGENCY: THE RISE AND DECLINE OF THE CIA 439-40 (1986) (quoting former U.S. Dep't of State official Wayne Cooper).
106. Id. at 438.
107. MCCOY, supra note 39, at 64-65.
108. Id. at 66-67. William Colby, who helped oversee Phoenix and later served as CIA director, admitted in congressional testimony that more than 20,000 were killed under the program from 1968 to 1971, but he later claimed in his memoirs that most of these deaths were in military combat.
109. See RANELAGH, supra note 65, at 440 (citing WILLIAM COLBY & PETER FORBATH, HONORABLE MEN: MY LIFE IN THE CIA 270-72 (1978)).
110. Rejali discusses a study that concludes, "'the most optimistic (i.e., most accurately selective scenario) is that about 4.7 innocent persons were killed for every Vietcong agent. In the intermediate case, we have about 10.3 innocents killed for every rebel participant.'" REJALI, supra note 55, at 471 (quoting Stathis Kalyvas & Mathew Kocher, Violence and Insurgency: Implications for Collective Action 27 (Apr. 10,2006) (unpublished manuscript, on file with original authors)).
111. MOYAR, supra note 64, at 88.
112. Id. at 90-93.
113. PETER H. SMITH, TALONS OF THE EAGLE: DYNAMICS OF U.S.-LATIN AMERICAN RELATIONS 50 (2d ed. 2000).
114. LARS SCHOULTZ, BENEATH THE UNITED STATES: A HISTORY OF U.S. POLICY TOWARD LATIN AMERICA 258 (1998).
115. For the furor over human rights abuses in Haiti and the Dominican Republic, see Id. at 253-56.
116. SMITH, supra note 72, at 71.
117. See generally Id. at 130-88 (discussing various U.S. approaches to Latin American relations).
118. Id. at 131.
119. MCCOY, supra note 39, at 73. U.S.-financed training programs for police involved many other countries in addition to those in Latin America.
120. See Strassfeld, supra note 61, at 298.
121. MCCOY, supra note 39, at 73-74.
122. Id. at 86.
123. Memorandum from Werner E. Michel, Assistant to the Sec'y of Def. (Oversight Div.), to Richard Cheney, Sec'y of Def. Regarding Improper Material in Spanish-Language Intelligence Training Manuals 2 (Mar. 10, 1992).
124. Id. at 2;
125. see also MCCOY, supra note 39, at 86-88.
126. Dana Priest, U.S. Instructed Latins on Executions, Torture, WASH. POST, Sept. 21, 1996, at Al. For details on the activities of School of the Americas graduates, see Timothy J. Kepner, Torture 101: The Case Against the United States for Atrocities Committed fry School of Americas Alumni, 19 DICK. J. INT'L L. 475 (2001). In 2000, the Department of Defense renamed the school and reorganized its curriculum to include more courses on human rights and due process. It now operates under the name Western Hemisphere Institute for Security Cooperation.
127. Id. at 528.
128. Michel, supra note 80, at 2-3.
129. See generally OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE/PUBUC AFFAIRS OFFICE, FACT SHEET CONCERNING TRAINING MANUALS CONTAINING MATERIALS INCONSISTENT WITH U.S. POLICY (1996), http://www.gwu.edu/ ~nsarchiv/nsa/archive/news/dodmans.htm.
130. CIA, HUMAN RESOURCE EXPLOITATION TRAINING MANUAL: 1983 ¶¶ L-3-L-5, available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122/index.htmtthre;
131. see also MCCOY, supra note 39, at 99 ("Army Special Forces had conducted at least seven 'human resources exploitation' courses in Latin America between 1982 and 1987⋯.").
132. MCCOY, supra note 39, at 95-96;
133. see also Kepner, supra note 82, at 486-92 (discussing American involvement in training School of the Americas officers to use torture techniques).
134. CIA INSPECTOR GEN., REPORT OF INVESTIGATION: SELECTED ISSUES RELATING TO CIA ACTIVITIES IN HONDURAS IN THE 1980S, DOC. NO. 96-0125-IG, at 204 (1997) (ellipses in the quotation indicate material mat was redacted when the report was released);
135. see also JENNIFER K. HARBURY, TRUTH, TORTURE, AND THE AMERICAN WAY 31, 56-104 (2005) (discussing the testimony of Central American torture victims and noting that the CIA has denied involvement);
136. DIANNA ORTIZ, THE BLINDFOLD'S EYES: MY JOURNEY FROM TORTURE TO TRUTH 31-33 (2002) (American missionary recalling her capture, rape, and torture by security forces while working in Guatemala and claiming that an American oversaw the torturers' actions).
137. CIA INSPECTOR GEN., supra note 86, at 18.
138. See James LeMoyne, Testifying to Torture, N.Y. TIMES, June 5, 1988, § 6, at 45 (focusing on Honduras);
139. Mireya Navarro, Guatemalan Army Waged "Genocide," New Report Finds, N.Y. TIMES, Feb. 26, 1999, at Al (focusing on Guatemala);
140. Priest, supra note 82 (reporting that "U.S. Army intelligence manuals used to train Latin American military officers from 1982 to 1991 advocated executions, torture, blackmail and other forms of coercion against insurgents").
141. For a discussion of additional continuities between the practices of the war on terror and those of the domestic criminal justice and prison systems, see Forman, supra note 12.
142. LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 361-62 (1993).
143. See Wesley McNeil Oliver, The Rise and Fall of Material Witness Detention in Nineteenth Century New York, 1 N.Y.U. J. L. & LIBERTY 727, 747 (2005);
144. Carolyn B. Ramsey, In the Sweat Box: A Historical Perspective on the Detention of Material Witnesses, 6 OHIO ST. J. CRIM. L. (forthcoming 2009).
145. EDWARD PETERS, TORTURE 111-12 (expanded ed. 1996).
146. See LAWRENCE M. FRIEDMAN, AMERICAN LAW IN THE 20TH CENTURY 209-10 (2002);
147. WELSH S. WHITE, MIRANDA'S WANING PROTECTIONS: POLICE INTERROGATION PRACTICES AFTER DICKERSON 14-22 (2001).
148. See PETERS, supra note 92, at 112;
149. WHITE, supra note 93, at 21-22.
150. See Miranda v. Arizona, 384 U.S. 436,467-73 (1966);
151. WHITE, supra note 93, at 39-59.
152. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPECIAL REPORT: ARREST- RELATED DEATHS IN THE UNITED STATES, 2003-2005, at 1-2 (2007).
153. Id. Note that "80% of law enforcement homicides involved the use of a weapon by the arrest subject,"
154. Id. at 2, which supports (although it does not confirm) the conclusion that many of these homicides were justified or excused.
155. U.S. CONST, amend. IV.
156. Saucier v. Kate, 533 U.S. 194, 205 (2001) ("If an officer reasonably but mistakenly believed that a suspect was likely to fight back ⋯ the officer would be justified in using more force than in fact was needed.");
157. Graham v. Connor, 490 U.S. 386, 398 (1989).
158. Under Tennessee v. Gamer, All U.S. 1 (1985), deadly force claims received special treatment. More recently, the Court held that deadly force claims are no different from any other excessive force claim and turn on the same assessment of reasonableness.
159. See Scott v. Harris, 550 U.S. 372, 382-85 (2007). For discussion of the change from Garner to Scott, and the idea of rights that it embraces, see John T. Parry, Rights and Discretion in Criminal Procedure's War on Terror, 6 OH. ST. J. CRIM. L. 323 (2008).
160. See Michigan v. Summers, 452 U.S. 692, 702-03, 705 n.19 (1981) (quoting Dunaway v. New York, 442 U.S. 200, 219-20 (1979) (White, J., concurring)).
161. Muehler v. Mena, 544 U.S. 93, 98-100 (2005).
162. Id. at 108 (Stevens, J., concurring).
163. See United States v. Ankeny, 490 F.3d 744, 752 (9th Cir. 2007) (use of flash bang devices, rubber bullets, and other force to execute search warrants, which burned the defendant and damaged his home, did not require exclusion of evidence obtained in the search even if such use may have been unreasonable).
164. Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right To Remain Silent, 94 MICH. L. REV. 2625, 2651 (1996).
165. Admissibility of statements in criminal trials also falls under the due process voluntariness test, which predates incorporation of the Self-Incrimination Clause. A confession is involuntary in violation of due process if, under the totality of the circumstances, '"a defendant's will was overborne' by the circumstances surrounding the giving of a confession." Dickerson v. United States, 530 U.S. 428, 434 (2000). Not only is the voluntariness test famously difficult to apply, see WHITE, supra note 93, at 44, but few courts will find a confession involuntary under due process if the suspect received the Miranda warnings, waived them, and thus apparently spoke free of Fifth Amendment compulsion, see Missouri v. Seibert, 542 U.S. 600, 608-09 (2004).
166. Miranda v. Arizona, 384 U.S. 436 (1966).
167. Id. at 444.
168. Id.
169. Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 653-54 (1996) (finding as many as seventy-eight percent of suspects waive their Miranda rights).
170. New Yorkv. Quarles, 467 U.S. 649, 655 (1984).
171. WHITE, supra note 93, at 99.
172. For a good summary of these tactics, see Richard J. Ofshe & Richard A. Leo, The Decision To Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U. L. REV. 979, 985-86 (1997).
173. For discussion of the development of the Inbau Manual and its reliance on professionalism and sophisticated psychological strategies, see WHITE, supra note 93, at 25-36. Although there is a clear resemblance between the two manuals at a general level, Kubark goes further than Inbau in terms of the degree of psychological control and manipulation it seeks to promote.
174. Id. at 25.
175. E.g., Ashcraft v. Tennessee, 322 U.S. 143, 160 (1944) (Jackson, J., dissenting);
176. Chambers v. Florida, 309 U.S. 227, 239-41 (1940);
177. cf. Brown v. Mississippi, 297 U.S. 278, 286 (1936) (explaining that due process does not permit use of "confessions obtained by violence" to obtain a conviction and describing the interrogation at issue as "revolting to the sense of justice").
178. Chavez v. Martinez, 538 U.S. 760 (2003).
179. Id. at 766-67 (plurality opinion).
180. Id. at 778 (Souter, J., concurring) (quoting Miranda v. Arizona, 384 U.S. 436, 515, 517 (1966) (Harlan, J., dissenting)). By contrast, Justice Stevens considered the conduct in Chavez to be "the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous means," although he did not say that damages should be available for violation of the privilege.
181. Id. at 783 (Stevens, J., concurring in part and dissenting in part). For extensive discussion of Chavez, see John T. Parry, Constitutional Interpretation, Coercive Interrogation, and Civil Rights Litigation After Chavez v. Martinez, 39 GA. L. REV. 733 (2005).
182. Chavez, 538 U.S. at 764 (plurality opinion).
183. County of Sacramento v. Lewis, 523 U.S. 833, 846, 849 (1998).
184. Chavez, 538 U.S. at 774 (plurality opinion).
185. Id. at 775 (opinion of Thomas, J., joined by Rehnquist, C.J., and Scalia, J.);
186. Id. at 787-89 (Stevens, J., concurring in part and dissenting in part);
187. Id. at 796-99 (Kennedy, I., concurring in part and dissenting in part). Justice Ginsburg joined the relevant portions of Justice Kennedy's opinion.
188. See Id. at 799 (Ginsburg, J., concurring in part and dissenting in part).
189. See Id. at 775-81;
190. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Justice Thomas treated the "shocks the conscience" and "fundamental rights" approaches as distinct tests in Chavez, but Lewis suggested that the "fundamental rights" approach applies to legislative action, while executive action is judged under the "shocks the conscience" test.
191. See Lewis, 523 U.S. at 845-46, 847 & n.8.1 also want to acknowledge the argument that torture is "outrageous government conduct" requiring dismissal of the prosecution.
192. See United States v. Toscanino, 500 F.2d 267, 274 (2d Cir. 1974). No federal court has ever dismissed an indictment on this basis, and Toscanino may no longer be good law.
193. See United States v. Best, 304 F.3d 308, 312-13 (3d Cir. 2002).
194. The Supreme Court's statement in Hudson v. Michigan; 547 U.S. 586, 596 (2006)- "When ⋯ a confessed suspect in the killing of a police officer, arrested (along with incriminating evidence) in a lawful warranted search, is subjected to physical abuse at the station house, would it seriously be suggested that the evidence must be excluded⋯?"-seems also to undercut Toscanino.
195. See, e.g., JOHN CONROY, UNSPEAKABLE ACTS, ORDINARY PEOPLE: THE DYNAMICS OF TORTURE 225-41 (2000);
196. Lou Cannon, One Bad Cop, N.Y. TIMES, Oct. 1, 2000, (Magazine), at 62.
197. AMNESTY INT'L, RACE, RIGHTS AND POLICE BRUTALITY § 4 (1999), available at http://www.amnesty.oig/en/libraiy/a8set/AMRSl/147/1999/en/dom-AMR511471999en. html.
198. For additional incidents, see REJALI, supra note 55, at 242, 341;
199. John T. Parry, Judicial Restraints on Illegal State Violence: Israel and the United States, 35 VAND. J. HIANSNAT'L L. 73,78-79 (2002).
200. See CONROY, supra note 125, passim;
201. REJALL supra note 55, at 240-41;
202. Parry, supra note 126, at 78.
203. Compare Wayne R. LaFave, Controlling Discretion by Administrative Regulations: The Use, Misuse, and Nonuse of Police Rules and Policies in Fourth Amendment Litigation, 89 Mo. L. REV. 442, 446, 483-92 (1990) (noting an increase since 1975 in the promulgation of written guidelines for police practices), with Susan Bandes, Patterns of Injustice: Police Brutality in the Courts, 47 BUFF. L. REV. 1275, 1278-79 (2000) (claiming that many police departments continue to lack policies to control law enforcement practices).
204. See WHITE, supra note 93, at 25-36,76-101.
205. See supra note 113 and accompanying text.
206. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CRIMINAL OFFENDERS STATISTICS, http://www.ojp.usdoj.gov/bjs/crimoff.htm (last visited Dec. 22, 2008).
207. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 12 (2001).
208. For discussion of prison conditions in the nineteenth and early twentieth centuries, as well as an outline of efforts to reform prisons, see FRIEDMAN, supra note 93, at 92-95, 214-17;
209. FRIEDMAN, supra note 90, at 158, 310.
210. U.S. CONST, amend. Vm.
211. Hudson v. McMillian, 503 U.S. 1, 6-9 (1992);
212. Ingraham v. Wright, 430 U.S. 651 (1977);
213. Estelle v. Gamble, 429 U.S. 97, 102 (1976).
214. Hope v. Pelzer, 536 U.S. 730 (2002).
215. Id. at 735-36, 744-46.
216. Whitley v. Albers, 475 U.S. 312 (1986).
217. Id. at 320-321;
218. see also Hudson, 503 U.S. at 6.
219. Hope, 536 U.S. at 738.
220. See Fanner v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
221. Id. at 837.
222. Id. at 838.
223. See Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996);
224. Kreimer, supra note 9, at 283-84;
225. Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1557 (2003).
226. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, DATA BRIEF: MEDICAL CAUSES OF DEATH IN STATE PRISONS, 2001-04, at 1 (2007);
227. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPECIAL REPORT: MEDICAL PROBLEMS OF INMATES, 1997, at 1 (2001);
228. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPECIAL REPORT: SEXUAL VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES, 2006, at 3 (2007);
229. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPECIAL REPORT: SUICIDE AND HOMICIDE IN STATE PRISONS AND LOCAL JAILS (2005). My point in citing this information is simply to confirm that violence is more common in prison than in life on the outside. I do not mean to suggest, however, that violence in prison is static or only increases. To the contrary, it ebbs and flows.
230. See Ruiz v. Johnson, 37 F. Supp. 2d 855, 940 (S.D. Tex. 1999), rev'd sub nom. Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001), rev'd in part sub nom. Ruiz v. Johnson, 154 F. Supp. 2d 975 (S.D. Tex. 2001) (affirming district court's 1999 finding with regard to poor conditions of confinement, prisoner safety, and use of force).
231. Ruiz, 37 F. Supp. 2d at 915.
232. Id. at 929.
233. Mary Sigler, By the Light of Virtue: Prison Rape and the Corruption of Character, 91 IOWA L. REV. 561, 570 (2006).
234. David Kaiser, Letter to the Editors, A Letter on Rape in Prisons, N.Y. REV. BOOKS, May 10, 2007, at 22 (footnote omitted).
235. See Alice Ristroph, Sexual Punishments, 15 COLUM. J. GENDER & L. 139, 140 (2006).
236. Id. at 150.
237. Id. at 160.
238. See Id. at 176.
239. Id. at 181.
240. Wilkinson v. Austin, 545 U.S. 209, 214 (2005).
241. Id.
242. Scarver v. Litscher, 434 F.3d 972, 974 (7th Cir. 2006).
243. Gillis v. Litscher, 468 F.3d 488, 490 (7th Cir. 2006).
244. Id.
245. Id: at 490. For additional information on Wisconsin supermax conditions, including procedures for new inmates, see Scarver, 434 F.3d at 974. For conditions at the Illinois supermax, see Westefer v. Snyder, 422 F.3d 570, 589 (7th Cir. 2005).
246. David C. Fathi, The Common Law of Supermax Litigation, 24 PACE L. REV. 675, 676 (2004);
247. Jennifer R. Wynn & Alisa Szatrowski, Hidden Prisons: Twenty-Three-Hour Lockdown Units in New York State Correctional Facilities, 24 PACE L. REV. 497, 499 (2004).
248. Wynn & Szatrowski, supra note 162, at 506.
249. Craig Haney, Mental Health Issues in Long-Term Solitary and "Supermax" Confinement, 49 CRIME & DEUNQ. 124, 130-32 (2003).
250. Id. at 130-32 (2003);
251. see, e.g., Wynn & Szatrowski, supra note 162, at 509-17 (discussing the high incidence of mental health problems among prisoners in New York lockdown systems).
252. See GARLAND, supra note 132, at 14;
253. James E. Robertson, Houses of the Dead: Warehouse Prisons, Paradigm Change, and the Supreme Court, 34 Hous. L. REV. 1003,1004,1007-08 (1997).
254. For discussion of this dynamic, see Joan Dayan, Held in the Body of the States: Prisons and the Law, in HISTORY, MEMORY, AND THE LAW 196-97, 200 (Austin Sarat & Thomas R. Kearns eds., 1999).
255. Id at 198.
256. Id.
257. Cf. STEPHEN HOLMES, THE ANATOMY OF ANTILIBERALISM 230 (1993) (stating that liberal rights are attached to "the individual viewed in abstraction from political, economic, familial, and religious roles, as well as from race and gender").
258. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (citing Ludecke v. Watkins, 335 U.S. 160 (1948);
259. Nishimura Ekiu v. United States, 142 U.S. 651 (1892));
260. see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206,210-12 (1953).
261. Demore v. Kim, 538 U.S. 510, 522 (2003) (endorsing the doctrine of irregular due process for detainees and tracing its lineage).
262. See Kwong Hai Chew v. Colding, 344 U.S. 590,596-98 (1953).
263. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPECIAL REPORT: IMMIGRATION OFFENDERS IN THE CRIMINAL JUSTICE SYSTEM, 2000, at 2 (2002).
264. Id. at 1-3, 6. Those found guilty of illegal entry received an average prison sentence of more than twenty months, while those convicted of illegal reentry received an average prison sentence of thirty-six months.
265. Id. at 5-6.
266. For discussion of the increasing merger of criminal and immigration law, see Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 AM. U. L. REV. 367, 372, 408 (2006).
267. See Ex pane Endo, 323 U.S. 283, 300-03 (1944);
268. Korematsu v. United States, 323 U.S. 214, 223-24 (1944);
269. Hirabayashi v. United States, 320 U.S. 81,98-99 (1943).
270. BILL ONO HING, MAKING AND REMAKING ASIAN AMERICA THROUGH IMMIGRATION POLICY, 1850-1990, at 15 (1993). According to Erika Lee: [T]he barracks' windows were enclosed with iron bars, and the only time that detainees were allowed outside of their dormitory was during mealtimes⋯. All Chinese male applicants were housed in one large room, where bunk beds were arranged in double or triple rows. A small recreation yard was adjacent to the barracks, but no educational or recreational programs were provided. ERIKA LEE, AT AMERICA'S GATES: CHINESE IMMIGRATION DURING THE EXCLUSION ERA, 1882-1943, at 217 (2003).
271. MARK DOW, AMERICAN GULAG: INSIDE U.S. IMMIGRATION PRISONS 6 (2004);
272. see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 217 (1953) (Jackson, J., dissenting) (noting that petitioner was held for two years on Ellis Island).
273. Sales v. Haitian Ctrs. Council, 509 U.S. 155, 161 (1993).
274. See Id. at 163, 166 (upholding the repatriation program against international law and federal statutory challenges).
275. Mireya Navarro, For Guantdnamo Refugees, Hope Fades as Time Passes, N.Y. TIMES, Dec. 10, 1994, at Al; Mireya Navarro, Resources Strained at Guantdnamo Bay, N.Y. TIMES, Sept. 4,1994, at Al.
276. See Harold Hongju Koh, America's Offshore Refugee Camps, 29 U. RICH. L. REV. 139, 140-41 (1995). Compare Cuban Am. Bar Ass'n v. Christopher, 43 F.3d 1412, 1425 (11th Cir. 1995) (holding that the naval base at Guantánamo Bay is not U.S. territory), with Haitian Ctrs. Council v. McNary, 969 F.2d 1326 (2d Cir. 1992) (holding that some constitutional rights apply to Haitians held at Guantanamo because the base is under exclusive U.S. control), vacated as moot, 509 U.S. 918 (1993).
277. THOMAS ALEXANDER ALEINKOFF ET AL., IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 697 (5th ed. 2003). If anything, the average daily number has increased; Dow gives a 2004 figure of 23,000. Dow, supra note 179, at 9. For discussion of detention of asylum seekers, see ALEINIKOFP ET AL., supra, at 991;
278. STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 1106 (4th ed. 2005).
279. LEGOMSKY, supra note 184, at 203.
280. Zadvydas v. Davis, 533 U.S. 678, 680 (2001);
281. see also Clark v. Martinez, 543 U.S. 371, 377-80 (2005) (holding that the Court's ruling in Zadvydas also applies to aliens deemed inadmissible to the United States).
282. - See LEGOMSKY, supra note 184, at 205-06;
283. see also Demon: v. Kim, 538 U.S. 510, 529-31 (2003) (refusing to put limits on detention of permanent resident aliens while removal proceedings are pending, where eighty-five percent of such people were detained an average of forty-seven days and fifteen percent were detained an average of four months).
284. See Press Release, ACLU, Landmark Settlement-Announced in Federal Lawsuit Challenging Conditions at Immigrant Detention Center in Texas (Aug. 27, 2007), available at http://www.aclu.org/immigrants/detention/hutto.html;
285. see also Margaret Talbot, The Lost Children: What Do Tougher Detention Polices Mean for Illegal Immigrant Families?, NEW YORKER, Mar. 3, 2008, at 58. For earlier litigation over conditions in which juveniles are held pending removal decisions, see Reno v. Flores, 507 U.S. 292 (1993).
286. REJALI, supra note 55, at 321.
287. U.S. CONST, art. VI, cl. 2 (emphasis added).
288. The Paquete Habana, 175 U.S. 677, 700 (1900).
289. Medellín v. Texas, 128 S. Ct. 1346, 1357 (2008).
290. CURTIS A. BRADLEY & JACK L. GOLDSMITH, FOREIGN RELATIONS LAW: CASES AND MATERIALS 371 (2ded.2OO6).
291. See Medellín, 128 S. Ct. at 1366 (appearing to lean toward a presumption against self-execution). For criticism of Medellín and an argument for a presumption in favor of self-execution, see Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 HARV. L. REV. 599 (2008);
292. see also Carlos Manuel Vázquez, The Four Doctrines of Self-Executing Treaties, 89 AM. J. INT'L L. 695, 699 (1995) (discussing the presumption in favor of self-execution). Foŕ a short overview of the self-execution issue, see BRADLEY & GOLDSMITH, supra note 193, at 371-80. For a historical analysis, see John T. Parry, Congress, the Supremacy Clause, and the Implementation of Treaties, 32 FORDHAM INT'L L.J. (forthcoming 2009).
293. See Breard v. Greene, 523 U.S. 371, 376 (1998);
294. Whitney v. Robertson, 124 U.S. 190, 194 (1888). For the link between the last in time rule and the self-execution issue, see Parry, supra note 194.
295. For rare instances of a treaty trumping or modifying the application of a statute, see Cook v. United States, 288 U.S. 102, 119-20 (1933);
296. United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801).
297. See BRADLEY & GOLDSMITH, supra note 193, at 369.
298. Reservations attached to ratification of a treaty are "specific qualifications or stipulations that modify U.S. obligations without necessarily changing treaty language." Understandings are "interpretive statements that clarify or elaborate, rather than change, the provisions of an agreement and that are deemed to be consistent with the obligations imposed by the agreement." Declarations are "statements of purpose, policy, or position related to matters raised by (he treaty in question but not altering or limiting any of its provisions." CONG. RESEARCH SERV., LIBRARY OF CONG., 106TH CONG., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE - A STUDY PREPARED FOR THE COMMITTEE ON FOREIGN RELATIONS, UNITED STATES SENATE 125-26 (Comm. Print 2001).
299. Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AM. J. INT'L L. 341, 341 (1995).
300. For criticism of reservations, understandings, and declarations, see U.N. Human Rights Comm. [UNHRC], General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations under Article 41 of the Covenant, ¶¶ 8,14, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (Nov. 4, 1994);
301. Henkin, supra note 199. For a defense, see Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. PA. L. REV. 399 (2000).
302. See Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).
303. The Paquete Habana, 175 U.S. 677, 700 (1900).
304. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804);
305. see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 114 (1987) (articulating a similar principle).
306. For discussion of presidential and judicial authority over customary international law, see MICHAEL D. RAMSAY, THE CONSTITUTION'S TEXT IN FOREIGN AFFAIRS 362-76 (2007);
307. Julian Ku, Ali v. Rumsfeld: Challenging the President's Authority to Interpret Customary International Law, 37 CASE W. RES. J. INT'L L. 371 (2006). On the President's ability to violate treaties, see RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(3) (1987) (declaring President may disregard a treaty, "when acting within his constitutional authority");
308. Louis HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 214 (2d ed. 1996) ("[T]he President has authority under the Constitution to denounce or otherwise terminate a treaty ⋯. ").
309. The extent of deference fluctuates. Compare Sanchez-Llamas v. Oregon, 548 U.S. 331, 355 (2006) ('"[T]he meaning given [treaties] by the departments of government particularly charged with their negotiation and enforcement is given great weight.'"), with Hamdan v. Rumsfeld, 548 U.S. 557, 613 (2006) (giving no deference to the President's interpretation of the Geneva Conventions);
310. see also David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. ANN. SURV. AM. L. 497 (2007) (analyzing and comparing treaty interpretation in Hamdan with interpretation cases in the eighteenth and nineteenth centuries).
311. 28 U.S.C. § 1350 (2000).
312. See infra notes 260, 281. For more on why treaties rarely support claims under the Alien Tort Statute, see BRADLEY & GOLDSMITH, supra note 193, at 519.
313. Sosa, 542 U.S. at 724-25,732-33.
314. See Filartiga v. Pena-Irala, 630 F.2d 876, 887 (2d Cir. 1980).
315. For discussion of the history of Alien Tort Statute litigation, including the "third wave" of claims against U.S. officials, see Julian Ku, The Third Wave: The Alien Tort Statute and the War on Terrorism, 19 EMORY INT'L L. REV. 105 (2005).
316. International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, 6 I.L.M. 368, 999 U.N.T.S. 171, available at http://www.unhchr/ html/menu3/b/a-ccpr.htm. Article 4 of the ICCPR confirms that no derogation is permitted from this baa.
317. President's Message to Congress Transmitting Four Treaties Pertaining to Human Rights, 14 WEEKLY COMP. PRES. DOC. 395-96 (Feb. 23, 1978). The other treaties were the International Covenant on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social, and Cultural Rights, and the American Convention on Human Rights.
318. Warren Christopher, Letter of Submittal to the President of the United States, in Four Treaties Pertaining to Human Rights, S. Exec. Doc. C, D, E, & F, 95th Cong., 2d Sess. (Feb. 23,1978), at vi.
319. Id.
320. Id. at viii.
321. International Human Rights Treaties: Hearings Before the S. Comm. on Foreign Relations, 96th Cong. 26 (1979) (statement of Roberts B. Owen);
322. see also Id. at 315 (Feb. 6, 1980) (letter from Owen.to Senator Jacob Javits) (making clear that a non-self-executing treaty cannot provide "a rule of decision in a particular case" and "may not be enforced directly by the courts, but rather requires implementing legislation").
323. Id. at 39 (statement of Jack Goldklang).
324. Id. at 36.
325. Id. at 29-30, 40 (statements of Roberts B. Owen and Jack Goldklang).
326. Id. at 42 (response of Jack Goldklang to question from Senator Claibome Pell);
327. see also Id. at 315.
328. See INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, S. EXEC. REP. 102-23, at 2 (1992) [hereinafter ICCPR REPORT]. In the meantime, a House Committee held hearings ábout torture.
329. See The Phenomenon of Torture: Hearings and Markup Before the H. Comm. on Foreign Affairs and its Subcomms. on Human Rights and Jnt'l Orgs., 98th Cong. (1984). The hearings resulted in a joint resolution that called on the Administration "to continue to involve the United States Government in the formulation of international standards and effective implementing mechanisms, particularly the draft Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment." Joint Resolution Regarding the Implementation of the Policy of the United States Government in Opposition to the Practice of Torture by Any Foreign Governments, H.R.J. Res. 605, 98th Cong., 98 Stat. 1721 (1984). Whether those bearings and the resolution had any impact on the eventual ratification of the ICCPR and the signing and ratification of the Convention Against Torture is not clear. For discussion of the resolution, see Margaret E. Galey, Congress, Foreign Policy and Human Rights Ten Years After Helsinki, 7 HUM. RTS. Q. 334, 363-64 (1985).
330. See United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment, or Punishment, arts. 2, 4, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://www.un.org/documents/ga/res/39/ a39r046.htm.
331. 'Torture" is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
332. Id. art. 1.
333. Id. art. 16.
334. Compare Medellín v. Texas, 128 S. Ct. 1346, 1358-569 (2008) (the phrase "undertakes to comply" does not impart an obligation), with U.N. Comm. Against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, ¶ 3, U.N. Doc. CAT/C/GC/2 (Jan. 24, 2008) ("The obligations to prevent torture and other cruel, inhuman or degrading treatment ⋯ are indivisible, interdependent, and interrelated⋯. Accordingly, the Committee has considered the prohibition of ill-treatment to be likewise non-derogable⋯.").
335. See John T. Parry, "Just for Fun": Understanding Torture and Understanding Abu Ghraib, 1 J. NAT'L SEC. L. & POL'Y 253,265-66 (2005).
336. Message from the President of the United States Transmitting the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. TREATY DOC. NO. 100-20, at 2 (1988) [hereinafter Message from the President]. For a discussion by a U.S. Department of State official on the ratification of the various reservations, understandings, and declarations, see David P. Stewart, The Torture Convention and the Reception of International Criminal Law Within the United States, 15 NOVA L. REV. 449 (1991);
337. see also Jamie Mayerfeld, Playing by Our Own Rules: How U.S. Marginaliza-tion of International Human Rights Law Led to Torture, 20 HARV. HUM. RTS. J. 89, 117-20 (2007). For discussions of ratification of the Convention and ICCPR, with a focus on the question of self-execution, see Robert M. Chesney, Leaving Guantdnamo: The Law of International Detainee Transfers, 40 U. RICH. L. REV. 657, 678-80 (2006);
338. David Sloss, The Domestication of International Human Rights: Non-Self Executing Declarations and Human Rights Treaties, 24 YALE J. INT'L L. 129, 157-69 (1999). For a defense of non-self-execution declarations, see Bradley & Goldsmith, supra note 200, at 446-49.
339. Message from the President, supra note 227, at 3.
340. Id. at 4.
341. Id. at3.
342. Id. v.
343. Id. at 15.
344. Id. at 4-5.
345. Id. at 5.
346. Id. at 6.
347. Id at 15.
348. Id. at 15-16.
349. Id. at 6.
350. Id.
351. Convention Against Torture: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 58 (1990) (statement of Winston Nagan, Chairman of the Bd. of Dirs., Amnesty Int'l USA) [hereinafter Convention Against Torture Hearing].
352. Id.
353. Convention Against Torture Hearing, supra note 240, at 11 (statement of Abraham D. Sofaer, Legal Advisor, U.S. Dep't of State). Sofaer also discussed the negotiations over the RUDs. Id at 8-9;
354. see also Letter from Janet G. Mullins, Assistant Sec'y, Legislative Affairs, U.S. Dep't of State, to Sen. Larry Pressler (Apr. 4, 1990), reprinted in S. EXEC. REP. NO. 101-30, at 40 (1990) (explaining that the common law defenses understanding "was no longer necessary and potentially counterproductive").
355. Convention Against Torture Hearing, supra note 240, at 16 (statement of Mark Richard, Deputy Assistant Attorney Gen., U.S. Dep't of Justice).
356. For criticism of the earlier proposal, see Id. at 8-9 (Sofaer statement).
357. Id at 17 (Richard statement).
358. Id.
359. To the extent due process applies in this context, U.S. constitutional doctrine holds that a treaty cannot override individual constitutional rights, so that a criminal defendant's due process right to a reasonably clear criminal prohibition could not be defeated simply because the allegedly vague prohibition derived from a treaty.
360. See Boos v. Barry, 485 U.S. 312, 324 (1988);
361. Reid v. Covert, 354 U.S. 1, 16-17 (1957).
362. Connally v. GEN. Constr. Co., 269 U.S. 385, 391 (1926).
363. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982) (quoting Grayned v. City of Rockford, 408 U.S. 104,108-09 (1972)).
364. WAYNE R. LAFAVE, CRIMINAL LAW 105 (4th ed. 2003).
365. Convention Against Torture Hearing, supra note 240, at 10 (Sofaer statement).
366. Id. at 17.
367. Id.
368. Id. at 55 (statement of Amnesty Int'l USA).
369. Id. at 94 (statement of Human Rights Watch).
370. Id.
371. S. EXEC. REP. NO. 101-30, at 4 (1990).
372. Id. at 6;
373. see also Id. at 7-8,10.
374. The only issue during debate was the approval of several amendments to the advice and consent resolution proposed by Senator Jesse Helms and relating to the primacy of U.S. law over international law and to the importance of federalism in the application and enforcement of treaty obligations.
375. See 136 CONG. REC. 36,194-96 (1990).
376. See Id. at 36,199;
377. Ratifications of Human Rights Treaties and Related Issues, INT'L HUM. RTS. L. UPDATE (Aspen Inst.), Fall 1994, at § m(a);
378. Office of the United Nations High Commissioner for Human Rights, http://www2.ohchr.org/english/bodies/ratincation/9.htm (last visited Jan. 17, 2009).
379. The Senate Report declared that "the majority of the obligations to be undertaken by the United States pursuant to the Convention are already covered by existing law," and that the non-self-execution declaration would clarify "that further implementation of the Convention will be through implementing legislation." S. EXEC. REP. NO. 101-30, at 10 (1990). Federal courts repeatedly have held that the Convention is not self-executing.
380. See, e.g., Cornejo-Barreto v. Seifert, 379 F.3d 1075,1086-87 (9th Cir. 2004) (reaching this conclusion and citing other cases that have reached the same conclusion), vacated as moot, 389 F.3d 1307 (9th Cir. 2004) (en bane).
381. 136 CONG. REC. 36,198. "Specific intent" is a common law term for a high level of metis rea, as opposed to the more ordinary "general intent." The Model Penal Code instead distinguishes between purpose and knowledge.
382. See MODEL PENAL CODE § 2.02 & cmt. at 21 (1962). Several federal courts have adopted this interpretation of "specifically intended" in the torture context For discussion and criticism, see Renee C. Redman, Defining "Torture": The Collateral Effect on Immigration Law of the Attorney General's Narrow Interpretation of "Specifically Intended" When Applied to United States Interrogators, 62 N.Y.U. ANN. SURV. AM. L. 465-95 (2007).
383. 136 CONG. REC. 36, 198.
384. Some additional support for this conclusion comes from the Reagan Administration's effort to obtain an understanding on the "lawful sanctions" exception in Article l's definition of torture: "The United States understands that 'sanctions' includes not only judicially-imposed sanctions but also other enforcement actions authorized by United States law or by judicial interpretation of such law." The goal was "to guard against Illegitimate claims that such law enforcement actions constitute torture." Message from the President, supra note 227, at 4-5. The Bush Administration withdrew the proposed understanding after it was criticized for potentially "legitimiz[ing] officially-sanctioned torture."
385. Convention Against Torture Hearing, supra note 240, at 10 (Sofaer statement).
386. 136 CONG. REC. 36,198.
387. U.S. Written Response to Questions Asked by the U.N. Comm. Against Torture, Response to Question #44 (Apr. 28, 2006), available at http://www.state.gov/drl/rls/68554.htm;
388. Letter from William E. Moschella, Assistant Attorney Gen., to Sen. Patrick Leahy (Apr. 4, 2005).
389. See Abraham Sofaer, No Exceptions, WALL ST. J., NOV. 26, 2005, at All. At the time the Convention was negotiated, U.S. negotiators apparently took the position that it would not apply to "armed conflicts" and thus would not overlap with the Geneva Conventions.
390. See U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Summary Prepared by the Secretary-General in Accordance with the Commission Resolution 18 (XXXIV), ¶ 55, U.N. Doc. E/CN.4/1314 (Dec. 19, 1978) [hereinafter Secretary-General's Summary]; U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Report of the Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 5, U.N. Doc. E/CN.4/1984/72 (Mar. 9, 1984). This understanding, in turn, would mean that the Convention would not apply to some overseas activities. Although this may have been the position of U.S. negotiators, the Convention itself does not draw this distinction.
391. See Convention Against Torture, supra note 222, art. 2 ("No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be. invoked as a justification of torture.");
392. see also SecretaryGeneral's Summary, supra. Commentators also tend to disagree strongly with claims that the Convention (or human rights law generally) does not apply in times of war.
393. See, e.g., AHCENE BOULESBAA, THE U.N. CONVENTION ON TORTURE AND THE PROSPECTS FOR ENFORCEMENT 74 (1999);
394. ANNA-LENA SVENSSON-MCCARTHY, THE INTERNATIONAL LAW OF HUMAN RIGHTS AND STATES OF EXCEPTION 214, 376-77 (1998);
395. Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the Rule of Law, 75 GEO. WASH. L. REV. 1333,1367-70 (2007).
396. 136 CONG. REC. 36,198;
397. see also Convention Against Torture Hearing, supra note 240, at 10-11 (Sofaer statement). For the Reagan Administration's discussions of Articles 1 and 16, see Message from the President, supra note 227, at 3-4, 15-16.
398. See also Stewart, supra note 227, at 461-62 (discussing the death penalty issue and making no link between it and the CID reservation).
399. International Covenant on Civil and Political Rights: Hearing Before the S. Comm. on Foreign Relations, 102d Cong. 9 (1991) [hereinafter ICCPR Hearing].
400. Id. at 14.
401. ICCPR REPORT, supra note 221, at 2. The Administration stated this declaration would "clarify that the Covenant will not create a private cause of action in U.S. courts."
402. ICCPR Hearing, supra note 268, at 14. It later explained, [W]ith very few exceptions the law or practice of the United States ⋯ is already fully in accord with the requirements of the Covenant. In those few instances when U.S. law differs in its particulars from the Covenant⋯. the Administration has proposed an appropriate reservation or understanding⋯. In such instances, Congress remains, free, of course, to adopt legislation conforming U.S. law to the requirement of the Covenant.
403. Id. at 80. The Senate Report subsequently stated that in "areas in which U.S. law differs from the international standard ⋯ it may be appropriate and necessary to question whether changes in U.S. law should be made to bring the United States into full compliance at the international level." But the Report makes clear the ICCPR would not accomplish that result by itself: "changes in U.S. law in these areas will occur through the normal legislative process." ICCPR REPORT, supra note 221, at 4. For discussion of some of the various statements about self-execution and the ICCPR during the advice and consent process, see Sloss, supra note 227, at 165-67.
404. ICCPR Hearing, supra note 268, at 8.
405. ICCPR REPORT, supra note 221, at 12.
406. ICCPR Hearing, supra note 268, at 10.
407. For concern over claims that the "death row phenomenon" of confinement on death row while appeals play out could support cruel, inhuman, or degrading treatment claims, see Id. at 10 (Administration explanation);
408. Id. at 112 (prepared statement of the International Human Rights Law Group);
409. cf. Soering v. United Kingdom, 11 Eur. Ct. H.R. (ser. A) at 439, 468 (1989). Once again, the Administration proposed and the Senate approved a separate reservation on capital punishment.
410. See 138 CONG. REC. 8068 (1992).
411. ICCPR Hearing, supra note 268, at 41 (statement of Carol Nagenast, Chair of the Bd., Amnesty Int'l USA).
412. Id.
413. Id. at 96-97 (statement of Amnesty Int'l USA).
414. Id.
415. ICCPR REPORT, supra note 221, at 4.
416. 138 CONG. REC. 8068 (1992).
417. When the issue came up soon thereafter, Clinton Administration officials argued that Article 2 "restricted the scope of the Covenant to persons under United States jurisdiction and within United States territory." U.N. Human Rights Comm., Summary Record of the 1405th Meeting: United States of America, ¶ 20, U.N. Doc. CCPR/C/SR.1405 (Mar. 31,1995). The Human Rights Committee disagreed.
418. See U.N. Human Rights Comm., Concluding Observations of the Human Rights Committee: United States of America, ¶284, U.N. Doc. CCPR/C/79/Add.5O (Oct. 3, 1995). The second Bush Administration took the same position as the Clinton Administration.
419. See U.S. DEP'T OF STATE, SECOND AND THIRD PERIODIC REPORT OF THE UNITED STATES OF AMERICA TO THE U.N. COMMITTEE ON HUMAN RIGHTS CONCERNING THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ¶ 130 (2005), available at http://www.state.gOv/g/drl/rls/55504.htm;
420. see also id., annex 1;
421. Matthew Waxman, Head of U.S. Delegation, Principal Deputy Dir. of Policy Planning, U.S. Dep't of State, Opening Statement on the Report Concerning the International Covenant on Civil and Political Rights (July 17, 2006), http://www.state.gov/g/drl/rls/70392.htm.
422. For discussion of this issue, compare Dominic McGoldrick, Extraterritorial Application of the International Covenant on Civil and Political Rights, in EXTRATERRITORIAL APPLICATION OF HUMAN RIGHTS TREATIES 41 (Fons Coomans & Menno T. Kamminga eds., 2003) and Satterthwaite, supra note 266, at 1358-65, with Michael Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 AM. J. INT'L L. 122-27, 130-31,136-38 (2005).
423. Federal courts have taken the non-self-execution declaration seriously for the ICCPR, just as they have with the Convention Against Torture.
424. See Satterthwaite, supra note 266, at 1365 n. 184 (citing cases). David Sloss advances a provocative history and interpretation of the non-self-execution declarations that suggests they do not prevent courts from applying the Convention and ICCPR "directly to provide a judicial remedy in some, but not all, cases that raise meritorious treaty-based human rights claims." Sloss, supra note 227, at 135;
425. see also Ogbudimkpa v. Ashcroft, 342 F.3d 207, 218 n.22 (3d Cir. 2003) (suggesting, but not holding, that the non-self-executing declaration only prevents the Convention from creating a cause of action but may not prevent it from being directly enforceable in habeas proceedings). I do not agree with Sloss's reading of the history and thus cannot join his argument that the non-self-execution declarations were intended to have the limited effect he claims for them.
426. Torture Victim Protection Act of 1991 ("TVPA"), Pub. L. No. 102-256,106 Stat. 73 (codified at 28 U.S.C. § 1350 (2000)). For discussion of the TVPA as an implementation of the Convention, see H.R. REP. NO. 102-367, at 3-5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 85-88.
427. 18 U.S.C. § 2340 (2000). For discussion of this statute as an implementation of the Convention, see S. REP. NO. 103-107, at 58-59 (1993), reprinted in 1994 U.S.C.C.A.N. 302, 366. The statute "applies only to acts of torture committed outside the United States" because torture within the United States is "covered by existing applicable federal and state statutes."
428. Id. at 59, 302, 366;
429. see also 18 U.S.C. § 2340B (2000) (declaring state and local laws not preempted).
430. Foreign Affairs Reform and Restructuring Act ("FARRA"), Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681 (1998). The Act also directed federal agencies to craft regulations to implement this policy and states that these regulations will "implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention."
431. Id. § 2242(b).
432. 18 U.S.C. § 234O(1M2);
433. TVPA, 28 U.S.C. § 1350 note; FARRA, Pub. L. No. 105-277, § 2242(f)(2) (declaring that the definition of torture is the same as the Convention, "subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention"). For a discussion of the Senate's understanding of "mental suffering," see supra notes 250,262 and accompanying text.
434. 8 C.F.R. § 208.16(c)(2) (2008);
435. 22 C.F.R. § 95.1(c) (2008). The immigration regulations also allow the Administration to take "diplomatic assurances" into account.
436. See 8 C.F.R. § 208.18(c) (2008).
437. 8 C.F.R. § 208.18(a)(2) (2008);
438. 22 C.F.R. § 95.1(b)(7) (2008). The immigration regulation adds the phrase "that do not amount to torture" at the end of the phrase quoted in the text. Note as well that both sets of regulations limit the reach of the "lawful sanctions" exception to torture by declaring that the exception does not apply to sanctions that "defeat the object and purpose of the Convention Against Torture to prohibit torture." 8 C.F.R. § 208.18(a)(3);
439. 22 C.F.R. § 95.1 (b)(6).
440. See Convention Against Torture, supra note 222, art. 3. In its first General Comment, the Committee Against Torture has highlighted the ban on rendition to face torture but said nothing about rendition to face cruel, inhuman, or degrading treatment. U.N. Comm. Against Torture, General Comment No. 1: Implementation of Article 3 of the Convention in the Context of Article 22, ¶¶ 1, 3-5, U.N. Doc. A/53/44 (Nov. 21,1997). Its second General Comment fudges this issue but does not reverse the earlier comment: [I]f a person is to be transferred or sent to the custody or control of an individual or institution known to have engaged in torture or ill-treatment⋯ the State is responsible, and its officials subject to punishment for ordering, permitting or participating in this transfer contrary to the State's obligation to take effective measures to prevent torture in accordance with article 2, paragraph 1. U.N. Comm. Against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, i 19, U.N. Doc. CAT/C/GC/2 (Jan. 24, 2008). Still, [I]nsofar as it might be possible to derive from other international ⋯ legal instruments a prohibition against extradition ⋯ where the extradited or expelled person might be exposed to cruel, inhuman or degrading treatment or punishment falling short of torture, the fact that article 3 of the present Convention only deals with torture should not be interpreted as limiting the prohibition against extradition ⋯ which follows from such other instruments. J. HERMAN BURGERS & HANS DANELJUS, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 150 (1988).
441. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S. DEP'T OF JUSTICE, FY 2006 STATISTICAL YEAR BOOK, Ml (2007);
442. see also EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S. DEP'T OF JUSTICE, FY 2005 STATISTICAL YEAR BOOK, Ml (2006);
443. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S. DEP'T OF JUSTICE, FY 2004 STATISTICAL YEAR BOOK, Ml (2005);
444. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, U.S. DEP'T OF JUSTICE, FY 2003., STATISTICAL YEAR BOOK, Ml (2004);
445. EXECUTIVE OFFKK FOR IMMIGRATION REVIEW, U.S. DEP'T OF JUSTICE, FY 2002 STATISTICAL YEAR BOOK, Ml (2003).
446. See, e.g., Mouwad v. Gonzales, 485 F.3d 405 (8th Or. 2007);
447. Kay v. Ashcroft, 387 F.3d 664 (7th Cir. 2004);
448. Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004);
449. Al-Saher v. INS, 286 F.3d 1143 (9th Cir. 2001).
450. Ahmed v. Keisler, 504 F.3d 1183, 1201 (9th Cir. 2007). The court did hold that police beatings sufficed to create a probability of persecution, see Id. at 1200, although the dissenting judge disagreed, see Id. at 1201-03 (Rawlinson, J., dissenting).
451. See Auguste v. Ridge, 395 F.3d 123,128, 154 (3d Cir. 2005) (upholding petitioner's removal to Haiti despite the fact that conditions in the prison to which he would be sent would probably be "miserable and inhuman" and "brutal and deplorable" because there was no evidence that Haitian officials have a "specific intent" to use prison conditions as a means of inflicting severe pain or suffering);
452. see also Redman, supra note 261, at 465-95.
453. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
454. See Id. at 627-28. For discussion of the question whether the Geneva Conventions are self-executing, see Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions?, 90 CORNELL L. REV. 97,124-28 (2004).
455. 18 U.S.C. §2441 (2001).
456. Military Commissions Act, § 6(b), Pub. L. No. 109-366,120 Stat. 2600 (2006).
457. Cf. REJALI, supra note 55, at 315 ("[M]ost techniques that appeared at Abu Ghraib had appeared first in American prisons and plantations, British ships and bases, and French prisons and penal camps in the colonies.").
458. Memorandum from Jay S. Bybee, Assistant Attorney Gen., to Alberto R. Gonzales, Counsel to the President, Regarding the Standards of Conduct for Interrogation Under 18 U.S.C. § 234O-2340A (Aug. 1,2002), in THE TORTURE PAPBRS: THE ROAD TO ABU GHRAIB 172 (Karen J. Greenberg & Joshua L. Dratel eds., 2005).
459. See, e.g.. JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW & JUDGMENT INSIDE THE BUSH ADMINISTRATION 143-50 (2007);
460. José" Alvarez, Torturing the Law, 37 CASE W. RES. J. INT'L L. 175, 176-77 (2006);
461. Kathleen Clark, Ethical Issues Raised by the OLC Torture Memorandum, 1 J. NAT'L SEC. L. & POL. 455, 458 (2005);
462. Koh, supra note 10, at 647;
463. Seth F. Kreimer, "Torture Lite, "Full Bodied" Torture, and the Insulation of Legal Conscience, 1 J. NAT'L SBC. L. & POL'Y 187 (2005);
464. Luban, supra note 11, at 1425;
465. Waldron, supra note 8, passim.
466. Similarly, the debate over the application - or not-of the Geneva Conventions to the invasion of Afghanistan reflects the stance toward international law that emerged in the ratification of the Convention Against Torture and ICCPR: these documents have minimal influence and are perhaps merely optional; certainly they have little domestic meaning. For the various documents, see THE TORTURE PAPERS, supra note 298, at 38-135.
467. Memorandum from Daniel Levin to James B. Comey, Deputy Attorney Gen., Regarding Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A (Dec. 30, 2004), in THE TORTURE DEBATE IN AMERICA 361, 368 (Karen J. Greenberg ed., 2006).
468. Scott Shane et al., Secret U.S. Endorsement of Severe Interrogations, N.Y. TIMES, Oct. 4, 2007, at Al;
469. see Memorandum from David Levin, supra note 301, at 362 n.8.
470. Shane et al., supra note 302. Both memoranda remain classified.
471. For discussions of extraordinary rendition in the war on terror, see John T. Parry, The Shape of Modem Torture: Extraordinary Rendition and Ghost Detainees, 6 MELB. J. INT'L L. 516 (2005);
472. Satterthwaite, supra note 266, at 1350.
473. MCCOY, supra note 39, at 109;
474. Jane Mayer, Outsourcing Torture, NEW YORKER, Feb. 14, 2005, at 45, 45;
475. Michael Scheuer, A Fine Rendition, N.Y. TIMES, Mar. 11,2005, at A23.
476. Dep't of the Army, The Taguba Report (Mar. 2004), in THE TORTURE PAPERS, supra note 298, at 433.
477. Michelle Brown, "Setting the Conditions" for Abu Ghraib: The Prison Nation Abroad, 57 AM. Q. 973, 984 (2005);
478. see also REJALI, supra note 55, at 315;
479. Neil A. Lewis, F.B.I. Saw Inmates Treated Harshly at Abu Ghraib, N. Y. TIMES, Oct. 26,2004, at Al 1 ("One agent reported seeing inmates stripped naked and put in isolation cells. The report said this seemed similar to what the agent had seen in prison strip-searches in the United States.").
480. See Devlin Barrett, Senator Criticizes Hiring of 4 Iraq Prison Officials, Hous. CHRON., June 3, 2004, at A6;
481. Kim Cobb, Ex-Head of TDCJ Set Up Iraq Jail: "Checkered" Career Raises Questions, Hous. CHRON., May 16, 2004, at Al;
482. C.C. Simmons, Prisoner Abuse: From Texas to Baghdad: Former Texas Prison Chief Played Key [RJole at Abu Ghraib, THE TOUCHSTONE, Sept/Oct. 2004, http:www.rtis.com/touchstone/oct2004/06. html. Note that the former Texas director did not run Abu Ghraib; he was part of a team of advisors sent to help reconstruct "the judicial, prosecutorial and law enforcement sectors" in Iraq.
483. See Press Release, Dep't of Justice, Department of Justice Sends 25 Advisors to Iraq in Support of Provisional Authority Effort to Reconstruct Criminal System (May 20, 2003), available at http-y/www.usdoj.gov/opa/pr/ 2003/May/03-ag-267.htm.
484. DEP'T OF THE ARMY, FIELD MANUAL 34-52: INTELLIGENCE INTERROGATION 3-13 to 3-20 (1992).
485. Interrogators at Abu Ghraib had official permission to use methods that went beyond the Field Manual. See Memorandum from Lt. Gen. Ricardo S. Sanchez Regarding CJTF-7 Interrogation and Counter-Realisation Policy (Sept. 14, 2003), in ADMINISTRATION OF TORTURE: A DOCUMENTARY RECORD FROM WASHINGTON TO ABU GHRAIB AND BEYOND A-232 (Jameel Jaffer & Amrit Singh eds., 2007);
486. Memorandum from Lt. Gen. Ricardo S. Sanchez Regarding CJTF-7 Interrogation and Counter-Resistance Policy (Oct. 12,2003), in ADMINISTRATION OF TORTURE, supra at A-238 to A-239. My point is that even strict adherence to the Field Manual leaves room for coercion.
487. For an account of using these methods to obtain information, see CHRIS MACKEY & GREG MILLER, THE INTERROGATORS: INSIDE THE SECRET WAR AGAINST AL QAEDA (2004).
488. See DEP'T OF THE ARMY, FIELD MANUAL NO. 2.22-3, HUMAN INTELLIGENCE COLLECTOR OPERATIONS (2006). The document repeatedly cites the Geneva Conventions, stresses the importance of treating prisoners humanely, and emphasizes the responsibility of commanders.
489. Id. at 5-6, 5-13 to 5-14, 5-17 to 5-18, 5-20. It specifically prohibits cruel, inhuman, or degrading treatment and provides a nonexclusive list of prohibited interrogation methods: "forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner"; "placing hoods or sacks over the head.of a detainee; using duct tape over the eyes"; "applying beatings, electric shock, burns, or other forms of physical pain"; "waterboard-ing"; "using military working dogs"; "inducing hypothermia or heat injury"; "conducting mock executions"; and "depriving the detainee of necessary food, water, or medical care."
490. Id. at 5-21. Finally, the new manual lists eighteen permissible methods for all interrogations, as well as a "restricted interrogation technique called separation." The approved methods are the seventeen from the 1992 Field Manual, plus the "false flag" method, in which interrogators "convince the detainee that individuals from a country other than the United States are interrogating him, and trick the detainee into cooperating with U.S. forces."
491. Id. at 8-6 to 8-18, App. M. Separation is a form of isolation that is meant to be less severe than sensory deprivation. The new Field Manual is thus an interesting combination of exhortations to comply with the Geneva Conventions and new methods that allow more psychological coercion and thus make compliance with the Conventions more difficult.
492. See supra note 296 and accompanying text.
493. See Memorandum from Patrick F. Philbin & John C. Yoo, Deputy Assistant Att'ys Gen., to William J. Haynes, n, Gen. Counsel, Dep't of Defense, Regarding Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba (Dec. 28, 2001), in THE TORTURE PAPERS, supra note 298, at 29. The Supreme Court, of course, ultimately reached the opposite conclusion.
494. See Rasul v. Bush, 542 U.S. 466 (2004).
495. Official interrogation procedures at Guantánamo also went well beyond what the Field Manual allowed.
496. See Memorandum from Donald Rumsfeld, Sec'y of Defense, to the Commander, US Southern Command, Regarding Counter-Resistance Techniques in the War on Terrorism (April 16, 2003), in THE TORTURE PAPERS, supra note 298, at 360.
497. DEP'T OF DEFENSE, HEADQUARTERS: JOINT TASK FORCE - GUANTANAMO, CAMP DELTA STANDARD OPERATING PROCEDURES 33,4.2-4.3 (2003).
498. Id. at 4.3,6.7-6.8 & chs. 8-9.
499. See Mark Mazzetti & Scott Shane, Where Will Detainees from Guantdnamo Go?, N.Y. TIMES, Jan. 24,2009, at A13 (quoting Sen. Diane Feinstein, Sen. Carl Levin, and Rep. John Murtha).