Interrogation After 9/11: The Law on the Books and the Law on the Ground

Abstract

Since the Abu Ghraib photographs were released, there has been no shortage of books and articles alleging that U.S. interrogation practices violated military, civilian and international law. Writers have offered two causal narratives to account for the illegalities. At one extreme, it is claimed that a few “bad apples” abused detainees in knowing violation of clear interrogation law. At the other extreme is the claim that high level officials ordered soldiers to use abusive interrogation techniques. What both accounts have in common is the assumption that the “law” against which interrogators’ conduct should be measured consists only of formal prohibitions – the ones officials claim the “bad apples” violated – or formal orders – the ones that military interrogators claim they were following. These accounts have the virtue of being simple and straightforward; of fingering the bad guys and providing solutions that fit clear legal paradigms. The problem, however, is that both explanations are false. They are false because their underlying assumption – that law consists only of formal rules – is false. In fact, however, the causal relationship between official interrogation rules and on-the-ground conduct was much more complicated than these accounts acknowledge. There were not one but two sets of interrogation laws in play: formal or de jure interrogation law – as laid out in official legal documents – and de facto interrogation law – as it was understood and practiced in the field. In this article I chronicle the rich and complex relationship between de jure and de facto interrogation law. This detailed historical account, drawn largely from the government’s own investigations, traces how the legal positions contained in Army documents, military orders, legal memoranda, and policy statements made (and or lost) their way from the halls of Washington D.C. to the interrogation cells of far-flung U.S. detention centers. Many of the abuses were not specifically authorized by the formal rules on the books. In many cases, however, interrogators believed they were acting lawfully and at the behest of commanders and high level officials. This historical account is a classic example of the (sometimes) dissonance and (sometimes) harmony occurring in the space between de jure pronouncements and de facto practices and the necessity of attending to the law as it was understood as well as practiced by actors on the ground. My account aims to focus attention on the right issues. The cause of the interrogation abuse was neither bad apples who flouted the rules nor malicious officials who ordered detainees to be abused. The causes were more complicated, which also makes potential solutions more complicated. It will not do simply to punish the individuals who engaged in the abusive conduct (although some individual sanctions are appropriate). Nor will it do simply to change the formal rules on the books (although clarifying the rules is an important first step). Any successful approach to preventing abuses in the future must take account of the mechanisms that gave rise to the de facto interrogation law that sanctioned what the formal law forbade. My account also has implications for assessing blame in connection with interrogation abuses that have already occurred. Is there a difference – in terms of causal responsibility and culpability – between the official who directly orders abuse and the one who contributes to an environment in which it is de facto practiced? I believe so, but this does not mean that the latter is off the hook. Top officials who pressed interrogators to obtain intelligence but failed to provide operational guidance and lawyers who declared that traditional rules of international and domestic law were not applicable cannot claim that interrogators who followed their lead were just a bunch of bad apples.