It is no secret that in the search for intelligence in the war on terror, the United States has employed a broad spectrum of interrogation techniques in its questioning of possible sources. Few will doubt the importance of gleaning what could be life-saving material from this type of data-mining, but few will quarrel either with the notion that a balancing test must be applied to weigh the interests of national security, and the threat of the violation of human rights.
Guidelines for treatment of prisoners of war have been set forth in the Geneva Convention.[i] If we assume that our adversaries in Afghanistan are not entitled to prisoner of war status, international treaties govern, notably Common Article III of the Geneva Convention. Within this framework for treatment of all detainees, the International Committee of the Red Cross explains that “unlawful” enemy combatants may be detained and prosecuted under either the domestic law of the detaining state, or international humanitarian or criminal law if applicable.[ii] Whether domestic law comports with the rules set forth internationally is to be determined on a case-by-case basis. In the United States’ war on terror, so enters the Army Field Manual.
Field Manual 2-22.3 is one of several specialized Army Field Manuals that function as operational guidelines for different activities engaged in by soldiers serving in the field.[iii] FM 2-22.3 is the guide for Human Intelligence Collectors Operations, which, in plain terms, means the interrogation of detainees.[iv] This guide was originally released during Dwight D. Eisenhower’s presidency, but the most recent update occurred in 2006.[v] Due to controversy over the use of the previous version, the 2006 update was met with the hope that clearer rules would be drawn to avoid questionable techniques that tip-toed the line between acceptability and torture.[vi] The new, publically retrievable manual specifically prohibits many of the controversial enhanced interrogation methods which helped bring the torture discussion to public attention, and also stipulates that the list of prohibited actions is not exhaustive.[vii] The newest manual is also notable because in 2009 President Obama signed Executive Order 13491 which required the CIA and other executive agencies to conduct interrogations only in accordance with FM 2-22.3.[viii] Previously the CIA was not bound by the same restrictions that the U.S. military was.
However, not all is well with FM 2-22.3, and more specifically the controversial Appendix M. Appendix M is the codification of the guidelines that are to be employed when using the restricted interrogation technique of separation.[ix] Separation, in terms of intelligence gathering, is a tactic that puts the detainee in isolation for a period of time in order to keep him from learning counter-resistance techniques or colluding with other prisoners.[x] One may ask why separation is so controversial; after all, prisoners in domestic jails are subjected to isolation in solitary confinement all across the country. Solitary confinement is not without its own opposition worldwide,[xi] but the practice has become legal and acceptable in the United States. Nevertheless, deeper examination of what Appendix M permits is what has been raising eyebrows domestically and abroad.
Appendix M in paragraph M-30, explicitly allows for what could arguably be sleep deprivation. It is indicated that detainees must get four hours of continuous sleep every 24 hours,[xii] an amount of sleep which over a long period of time can have serious adverse psychological effects.[xiii] Additionally, there is no indication that the four hours have to be in a specific time frame, meaning that it might be possible to have back-to-back 20-hour intervals of deprivation. The controversy continues with the allowance of the use of goggles, earmuffs, and blindfolds when physical separation is unavailable.[xiv] Many have considered this practice to be sensory deprivation, and torture.[xv] Appendix M concludes with the conspicuous approval of the use of psychological interrogation techniques that are no doubt believed to be more effective in conjunction with use of separation.[xvi] These techniques are known as, “futility”, “incentive”, and “fear up” and are described here.
The Manual does, however, explicitly forbid sensory deprivation, and puts many safeguards in place to avoid being construed as allowing torturous or degrading activity.[xvii] FM 2-22.3 insists that careful oversight be implemented for any use of separation. It is also worth noting that among the eighteen acceptable approach techniques for intelligence collection from enemy prisoners of war, separation is the only restricted one that is allowed by the AFM. A precise definition of ‘restricted’ is not given in the Army Field Manual, but Appendix M describes restricted techniques as those which require special approval, judicious execution, special control measures, and rigorous oversight.[xviii] The oversight comes from multi-step process which requires specific approval from a Special Judge Advocate, a COCOM (Combatant Command) Commander, and a General Officer.[xix] The AFM recognizes the Detainee Treatment Act of 2005 and purports to be in compliance with it.[xx] There are explicit restrictions on the use of excessive noise, dampness, heat or cold. The Manual also forbids inadequate bedding or blankets, heat, or ventilation. Additionally, there is a thirty-day time limit on how long a detainee may be separated physically from the rest of the detainee population.[xxi] This time limit has been criticized for not being as absolute a safeguard as it appears, because FM 2-22.3 is fairly vague about just how strict a regulation this one is.[xxii] Paragraph M-30 of the manual indicates that the thirty-day time limit is not absolute, and that it may be extended by the General Officer who originally approved the separation, subject only to review by a Staff Judge Advocate.[xxiii]
The manual goes to considerable length to specifically articulate that the use of the separation technique is only for those deemed “unlawful enemy combatants.” In fact, the manual states this technique is only to be used for specific enemy combatants who are believed to possess important intelligence.[xxiv] These specific enemy combatants must be chosen and approved by the proper authority.[xxv] What is interesting, though, is that these separation techniques are prohibited from use on detainees covered by the Geneva Convention, or in other words, traditional prisoners of war. Reasonable people may question why, if the government insists that all aspects of the techniques authorized by Appendix M are acceptable, these techniques are banned from use against lawful enemy combatants?
To classify a detainee as an unlawful enemy combatant presents a litany of questions as to what rights are to be afforded to that individual. Clearly, the United States government has been forced to wrestle with this issue in terms not only of treatment, but also of the procedural rules to be followed in reviewing detention decisions. The fact that the Army Field Manual and Appendix M are being used in detention sites in Afghanistan is no trivial matter. There would be no denying that most of these types of techniques are inappropriate in our domestic prisons, and under domestic law. However, the standards may change for these unlawful enemy combatants. Concerns of national and global security in the face of increasingly sophisticated terrorism make proper detainee treatment a difficult issue for many to resolve. Many factors act to shift the balance between detainee treatment and safety. Does the United States go too far? Is this torture? The answer is not clear, but the practice continues.
[i] Geneva ConventionRelative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, available at http://www.icrc.org/ihl.nsf/WebList?ReadForm&id=375&t=com.
[ii] The Relevance of IHL in the Context of Terrorism, The Int’l Comm. of the Red Cross, July 25, 2005, http://www.icrc.org/eng/resources/documents/misc/terrorism-ihl-210705.htm.
[iii] Dept. of Army, FM 2-22.3 (FM 34-52), Human Intelligence Collector Operations vi (2006) [hereinafter Army Field Manual], available at http://www.army.mil/institution/armypublicaffairs/pdf/fm2-22-3.pdf.
[v] The Army Field Manual: Sanctioning Cruelty?, Amnesty Int’l (Mar. 19, 2009, 02:58 PM), http://www.amnesty.org.au/hrs/comments/20575/.
[vi] John Hendren, Manual Defines Limits of Prisoner Interrogation, NPR, Sept. 6, 2006, http://www.npr.org/templates/story/story.php?storyId=5776992.
[vii] See Army Field Manual, supra note 3, at App. M ¶ M-8 to M-9.
[viii] Exec. Order No. 13491, 74 Fed. Reg. 4893 (Jan. 27, 2009) (mandating that all government agencies use the Army Field Manual).
[ix] Army Field Manual, supra note 3, at App. M.
[x] See id. at pages M-2, M-28.
[xi] Atul Gawande, Hellhole, The New Yorker, Mar. 30, 2009, http://www.newyorker.com/reporting/2009/03/30/090330fa_fact_gawande.
[xii] Army Field Manual, supra note 3, at app. M, ¶ M-30.
[xiii] Hans Van Dongen, Greg Maislin, Janet M. Mullington & David F. Dinges, The Cumulative Cost of Additional Wakefulness, 26 SLEEP 117 (2003), available at http://www.med.upenn.edu/uep/user_documents/VanDongen_etal_Sleep_26_2_2003.pdf.
[xiv] Army Field Manual, supra note 3, at app. M, ¶ M-29.
[xv] Kate Pickert, The Army Field Manual, Time, Jan. 26, 2009, http://www.time.com/time/nation/article/0,8599,1873897,00.html.
[xvi] Army Field Manual, supra note 3, at app. M, ¶ M-31.
[xvii] Id. at pp. M-1 – M-8.
[xviii] Id. at M-5.
[xix] Id. at M-7.
[xx] Id. at M-5; see also Detainee Treatment Act, Pub. L. No. 109-148, § 1003, 119 Stat. 2739, 2739 (codified as amended at 28 U.S.C. § 2241 (2005)).
[xxi] Army Field Manual, supra note 3, at app. M, ¶ M-30.
[xxii] Jeffrey Kaye, How the U.S. Army’s Field Manual Codified Torture — and Still Does, Alternet, Jan. 7, 2009, http://www.alternet.org/rights/117807/how_the_u.s._army’s_field_manual_codified_torture_–_and_still_does/?page=entire.
[xxiii] Army Field Manual, supra note 3, at app. M, ¶ M-30.
[xxiv] Id. at ¶ M-5.
[xxv] Id. at ¶ M-1.