USC Law Professor Speaks About Interrogation Techniques ... by Ed Butler
Any abusive interrogation tactics associated with Sept. 11, 2001 terrorism and the war in Iraq are likely to go unprosecuted.
That’s the position of a national security law professor at USC, who formerly prosecuted offenses involving national security for the United States Attorney’s Office in Los Angeles.
Professor Rebecca S. Lonergan, speaking at the SCALL Spring Meeting in Los Angeles April 28, said President Barack Obama has already defended CIA interrogators as people simply following orders. As for those higher in the food chain, politicians and attorneys who approved interrogation techniques were applying vague, arguable policy. This would make it difficult to prosecute them, either, Lonergan said.
On the currently hot topic of seemingly abusive interrogation techniques, Lonergan favors development of law that would clarify what constitutes torture both domestically and internationally.
As for the president’s order to shut down the Guantanamo Bay prison within a year, Lonergan opined that there are no good options for what to do with “enemy combatants” housed there.
She noted that President Obama has positioned himself against torture, shutting down CIA detention facilities, and has set up working groups while leaving policy direction unclear.
After working at the U.S. Attorney’s Office for 16 years, Lonergan in 2007 joined the faculty at USC Gould School of Law as associate director of legal writing and advocacy and adjunct assistant professor of law. The UC Santa Barbara graduate earned her law degree at UC Berkeley and litigated as a Los Angeles County deputy district attorney and in environmental crimes prosecution for the U.S. Department of Justice, before joining the U.S. Attorney’s staff.
Lonergan said existing federal statutory law on torture is based upon vague prohibitions in Article 3 of the Geneva Convention and the Convention Against Torture. These agreements fail to define torture and inhumane treatment and “severe” handling of prisoners, she said. Resulting 18 USC 2340 (a) forbids “severe” mental or physical pain, leaving that unclear, she added, and 18 USC 2441 leaves unclear what constitutes “war crimes.”
Lonergan said the openly published Army Field Manual forbids physically based techniques but describes 19 acceptable techniques that include development of rapport with the detainee and physically invasive or stressful techniques. She said these prescribed techniques arose from use of American special operations personnel who were tested on more abusive techniques such as “water boarding.” She expressed the view that accepted techniques should be kept secret, unlike the manual, because revealing them would help make them impractical and ineffective.
Lonergan reviewed a timeline of occurrences in the interrogation methods controversy, including Defense Department memos that were rescinded after they became controversial. In 2004 the Iraq prison scandal broke, with pictures showing psychological techniques shocking the conscience, and in 2006 the U.S. Supreme Court applied the Geneva Convention to Guantanamo Bay detainees.
While Lonergan favors keeping appropriate interrogation techniques secret, she does approve of disclosure of apparent abuses during the Bush Administration.
She disagrees with former Vice President Dick Cheney, who has favored revelation of intelligence gleaned from controversial techniques, as she believes that could interfere with intelligence collection.
She noted that terrorists have been trained to lie and misrepresent that they were tortured, and the efficacy of purportedly abusive techniques is subject to dispute.
Professor Lonergan noted that some have suggested use of especially justified “torture warrants” to enable more pressing techniques, and that in the past the U.S. employed torture in exigent and emergency circumstances.