Military Interrogation Suppression

Criminal Law & Procedure Practice Group

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Should statements gathered through enhanced interrogation techniques be suppressed in military commission trials of accused terrorists? Are statements made later to federal investigators cured of any taint by being made in a different place and context? Should the identity of government participants in enhanced interrogations be made available to the defense? In the years since the creation of the Military Commissions at Guantanamo Bay, military and federal judges have grappled with these critical issues of evidentiary admissibility and discovery. Join us as two law professor scholars of national security law discuss the wide-ranging implications of these issues.

Featuring: 

James Baehr, General Counsel, Pelican Institute for Public Policy

Prof. Jeffrey Addicott, Professor of Law; Director, Center for Terrorism Law, St. Mary's University School of Law

Prof. Stephen l. Vladeck, Professor of Law, The University of Texas at Austin School of Law 

 

Please note: During this call one of our speakers had a notably poor phone connection. We apologize for any inconvenience this may cause when listening to the podcast. 

 

Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Monday, July 22, 2019, during a live teleforum conference call held exclusively for Federalist Society members. During this call, one of our speakers had a notably poor phone connection. We apologize for any inconvenience this may cause in the recording.         

 

Micah Wallen:  Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is titled “Military Interrogation Suppression.” My name is Micah Wallen, and I’m the Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, it’s my pleasure to introduce to you our moderator James Baehr, who is General Counsel at the Pelican Institute for Public Policy. James will be introducing our panel today. After our panel gives their opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. James, the floor is yours.

 

James Baehr:  All right. Well, thank you all so much for joining us, and I thank the professors for being with us. We have Professor Addicott, who’s a professor in Texas -- a professor of law and Director of the Center for Terrorism Law. He served in the Judge Advocate General’s Corps in the United States Army for 20 years and was a Senior Legal Advisor to U.S. Army’s Special Forces. He’s prolific and involved with all sorts of discussions on counterterrorism law and national security law. He received a LL.M. from UV Law School and a J.D. from Alabama.

 

We also have Professor Stephen Vladeck. He’s here from the University of Texas. He’s a major contributor to Just Security and Lawfare, a co-author of textbooks on national security law and counterterrorism law, a graduate of Yale Law School, and a former Ninth Circuit clerk, and is also extremely involved and prolific on everything from amicus briefs to arguments of the Court concerning national security law. Gentlemen, such an honor to have you today. If I could hand the floor to Professor Addicott to just explain a little bit of the background here in terms of military commission, enhanced interrogation techniques, and lay that out for us.

 

Prof. Jeffrey Addicott:  Thank you very much. First of all, it’s a pleasure to be here. My last two assignments with the U.S. Southern Command, which had responsibility of Guantanamo Bay, so I’ve lectured quite often [inaudible 00:02:18]. They’re involved in that context. So I think, when you talk about interrogation issues, we know that in today’s world we’re in a very politically charged environment where almost everything is [inaudible 00:02:30] backwards, or thrown here in dirt -- thrown there [inaudible 00:02:34] roles off the tongue very easily. And this was the case when it began on 9/11, and you had a lot of individuals criticizing the processes we were engaged in at the time.

 

So when you talk about interrogation issues, we’ve noted the law has changed significantly when the War on Terror started with 9/11 to where we are today. So if something is illegal and improper -- it depends on the timeframe that you’re talking about. That’s one thing that everybody should keep in mind when you’re having these discussions. With legal [inaudible 00:03:07] in my opinion is not legal today. Some of the significant milestones, of course, is where we started a detention center at Guantanamo Bay that [inaudible 00:03:17] to get information from detained [inaudible 00:03:21] attack on the homeland. And for our main concern was to be very clear on violating the torture convention because that would be, obviously, one of the main pieces of law at the time -- was the Geneva Conventions.

 

Well, [inaudible 00:03:37] had come into play [inaudible 3:39] unlawful enemy combatants. And you know that the Geneva Conventions indicate that you cannot question unlawful enemy combatants beyond name, rank, and serial number, but as to lawful enemy combatants, you can question them. And so the issue was that the Department of Justice and also the DOD -- what techniques can we use? And as we all know, the Department of Justice issued some memos that were signed off on that indicated that we wanted to use interrogation techniques that would be, obviously, not in violation of the Geneva Convention, but could use certain techniques that are obviously not considered legal today, particularly with the Supreme Court ruling in 2006 in the Rumsfeld case, which says that all detainees -- you must apply Common Article III of the Geneva Convention, which means you can’t engage in degrading or humiliating treatment to individuals.

 

But up until that time, of course, we didn’t have that ruling. So we engaged in stressed [inaudible 00:04:33]. Those are pretty much well-known to the audience, if you’re listening to this, obviously. And so those techniques were involved. And they were a source of great debate. Of course, when President Obama took the office in 2008, he issued three Executive Orders. One of them was to look --

 

James Baehr:  Professor Addicott, your line is coming in and out. I’m not sure if your able to find a little better connection if you move or use a landline. You’re cutting in and out a little bit on my audio.

 

Prof. Jeffrey Addicott:  I apologize for that. It looks like we’re getting some storm clouds coming in over my head, and I don’t have access to a landline right now. So let me just cut it real short, then. We had, of course, this punishment of HIG. That’s the High Value Detainee Interrogation Group, which was kicked off, of course, in 2010 by their charter, which is classified. But it’s very clear that that has been used several times since 2010 in a variety of cases. The purpose there is to get information, as the purpose has always been of interrogation, but you cannot engage in any conduct that’s degrading or humiliating. But they’re not required to give Miranda warnings because, again, their intent is to gather intelligence. So the courts that have dealt with these types of issues have looked very closely at whether the purpose is to gain intelligence or to gain information for prosecutorial purposes.

 

James Baehr:  Okay. Great. Is there anything you wanted to add on that, Professor Vladeck?

 

Prof. Stephen I. Vladeck:  Well, I think if we’re going to talk about the history of coercive interrogations, I think it’s worth stressing a few additional points. Professor Addicott’s certainly correct that there is a period of time where there was some confusion as to exactly what the government and legal standards were. I think part of that is a reflection of the government’s own efforts to muddy the waters and to actually make it seem more confusing than perhaps it was. But I also think it’s, to some degree, a bit of a distraction because whether particular interrogation methods were or were not torture, were or were not lawful at the time they were engaged in is actually, I think, a meaningfully distended question from whether evidence obtained from those interrogations is therefore admissible against either the subjects of those interrogations or others in a civilian court or in a military commission.

 

And there’s a wide array of both rule, statutory and constitutional constraints on the admission of such interrogations and the fruits of such interrogations in trial. So I think it may be a bit of a sort of tangent to focus on rehashing the well-joined debate over the legality of particular interrogation methods compared to what I think are far more specific constraints on the admissibility of evidence obtained through those interrogations in these trials.

 

So just for one example out of many, when Congress passed the Military Commissions Act, it expressly codified in 10 U.S.C. § 948r a rule requiring the exclusion of all statements that were obtained through torture or cruel, inhuman, or degrading treatment and that there are obviously separate rules, both in the rules for military commissions, in federal law, and in the Constitution about admitting evidence that might incriminate a detainee without their consent.

 

We have a serious conversation to have about what knowledge and voluntariness means in this context. So I just think if the conversation is going to focus on the question of suppression, it’s one thing to talk about whether we actually had a clear understanding at the time these interrogations were being conducted that these methods rose to the level of torture. But I think the relevant question, form a suppression perspective, is whether at the time the evidence is being sought to be introduced it was understood to be in violation of these restrictions and if the cases that we’re planning to discuss all involve courts concluding that the answer was yes. So when thinking about how to frame the conversation, that’s where I would start.

 

James Baehr:  Any response to that, Professor Addicott?

 

Prof. Jeffrey Addicott:  Oh, no. That’s correct. Obviously, we had two military commissions acts: one passed by the Republican-controlled in Congress in 2006, I believe. And the other was passed by a Democrat-controlled Congress in 2009. So yeah. But again, my major point was, when you look at these issues -- and I’m giving a historical background. And my colleague’s correct. It’s not at all clear -- there’s a fault on [inaudible 00:08:51] sides, both the government and, of course, individuals that have, in my opinion, have demonized some of the things that we have done in the early days in the War on Terror.

 

Guantanamo Bay was compared to a concentration camp and all sorts of things. So yeah. The theme, really, that we’re discussing today is suppression, and I think the courts have looked at -- when you have people going out to interrogate individuals, the courts have been very careful to look at the mechanics of how they’re conducting these interrogations, whether they’re stepping over legal lines to determine whether it was to gather information or to gather evidence for prosecution. I do agree with my colleague to that degree, yes.

 

James Baehr:  Okay. And Professor Vladeck, could you kind of walk us through where the landscape stands today perhaps in some of the key cases and issues that are being addressed in some of the cases making their way up these days?

 

Prof. Stephen I. Vladeck:  Sure. I think we’ve had a couple of pretty significant decisions, both in civilian prosecutions of terrorism suspects and for the military commissions. I think, perhaps the most important ruling we have seen to date was a ruling issued by the military commissions -- by the trial judge, Colonel Pohl, presiding over the so called 9/11 trial. The pending military commission prosecution of the five alleged masterminds of the September 11 attacks—that’s Khalid Sheikh Mohammed, bin Attash, Ramzi Binalshibh, al-Hawsawi, and also Ali Abd al-Aziz Ali—that this ruling from last August—August 17—I think is perhaps the biggest one we’ve seen to date.

 

In a nutshell, what Judge Pohl ruled in this decision is that not only were the statements obtained from these defendants while they were in the CIA RDI program—the Rendition, Detention, and Interrogation Program—that I think we’re most familiar with because of the Senate Intelligence Committee’s report on the program. It’s not just that their statements are inadmissible in their military commission prosecution. It’s that even the statements that were obtained subsequently by an FBI so-called clean team—that is to say by interrogators who came in well after the CIA program had terminated, well after these guys were in military as opposed to CIA custody and who actually followed the applicable rules—that there was still too much tint, that there was still too much sort of residual concern about the voluntariness of the defendants’ statements to allow even the statements elicited from the clean team to be admitted at trial.

 

This, I think, was a really major ruling. It was one of the most, I think, pro-defendant rulings we’ve seen from a Guantanamo military commission in the 17 years now that we’ve had them. And I think it’s actually an important suggestion that at least with regard to this one topic area—the admission or suppression of these kinds of statements—that the military commissions are largely going to follow the standards being set by their civilian brethren.

 

So James, you had mentioned two other decisions from the civilian courts. And these are not alone but just two other, I think, leading decisions. One is by the D.C. federal district court by Judge Urbina in a 2009 case called Rabbani, where the government had basically required the government to actually produce evidence that the detainee had -- that had resulted from the detainee’s interrogation while he was at Guantanamo and basically said he had a right to see exactly what he had said while in government custody so that he could try to effectively rebut the case against him.

 

I think even more squarely on point we also have Judge Caplan’s ruling in the Manhattan federal district court in the case of Ahmed Ghailani. Listeners might remember Ghailani is the one Guantanamo detainee who was successfully transferred to the United States to stand trial in a civilian criminal court before Congress started imposing restrictions on Guantanamo detainee transfers. And Ghailani was indicted in district court, actually, before 9/11—1998—for playing a role, basically, in the 1998 embassy bombings in Nairobi and in Dara Salam. And basically, in this 2010 ruling by Judge Caplan, the court held that the government could not call a witness at Ghailani’s trial—a man by the name of Hussein Abebe—on the ground that the government had only been able to identify and locate Abebe by use of coerced and uncounseled statements Ghailani had made while in CIA detention.

 

So I think all this is just to sort of suggest that I think the courts have been fairly protective of defendants in these cases -- that without focusing on the specific debate over the legality of the underlying interrogation, what they’ve really instead focused on is on the question of voluntariness and whether there are genuine reasons to be concerned that the defendant’s statements in these contexts were involuntary.

 

So long as that’s the standard, I think it’s not surprising that these cases are coming out this way, and I think it’s not surprising that we’re seeing the same results in the military commission as we’re seeing in the civilian court because, even though there is this ongoing, I think, really important and yet unanswered question about the extent to which the enemy combatants at Guantanamo are protected by the Constitution, the courts are not having to answer those questions in these cases because they’re finding that suppression is required long before we get to the Fifth Amendment, simply by the relevant rules and statutes governing the military commissions.

 

So I guess my sort of threshold reaction to these decisions is that this strikes me as largely correct, deeply consistent, and, in general, I think a pretty powerful price that the government is paying for its missteps in the first parts of the last decade in its interrogation program.

 

James Baehr:  Okay. Professor Addicott, do you have thoughts or response to those specific line of cases or issues?

 

Prof. Jeffrey Addicott:  Well, again, we’ve got -- the Supreme Court has not spoken on the issue, so we’ve got a lot of lower courts that are unifying, as my colleague indicated, in a view that I think I do not disagree with. Again, our value system, of course, is something that we all cherish in terms of due process. So I think that the suppression issue that will probably find its way up to the Supreme Court at some point -- I don’t really have a fundamental problem with, as we’re indicating, people piggybacking off the fruit of the poisonous tree. I also note the catch-22 between Guantanamo Bay and its [inaudible 00:15:28] -- that individuals may not even go to trial.

 

We haven’t had a military commission since President Obama in the early part of his administration. And, of course, under the law, there are still unlawful enemy combatants that can be detained indefinitely until the war is over. And the question also comes to mind as to whether or not we can hold these individuals indefinitely in limbo without even giving them a trial just kind of drags on. That kind of issue is also equally disturbing to me.

 

James Baehr:  Do you gentlemen think that the assessment here in the voluntariness standard is the same as it would be in a civilian context? Do you think the government’s being held to a higher standard in a way here? Professor Vladeck, do you think this is the application -- an even application of the standard?

 

Prof. Stephen I. Vladeck:  Well, I think it’s hard to compare apples to oranges in this context. I think the Ghailani case is the only example we have of someone who spent even any time being detained as an enemy combatant in military detention who was subsequently prosecuted in civilian court where this issue specifically arose. I don’t think it’s clear at all that the government is being held to a higher standard than the military commissions. If anything, it might be a slightly lower standard, if only because there is this lingering uncertainty as to the applicability of the Fifth Amendment and the privilege against compulsory self-incrimination that it brings in the military commissions.

 

But to Professor Addicott’s point about the Supreme Court, I actually think the Court probably has very little interest in stepping into one of these cases. I think the Supreme Court would just as well prefer to have this issue just sort of left in the lower courts. It’s turned away a handful of cert petitions over the years where terrorism defendants in civilian criminal cases have tried to raise these kinds of evidentiary questions. I think one of the most important was a case out of Virginia in the middle part of the last decade called Abu Ali, where we had a U.S. citizen who was prosecuted on a series of very serious terrorism and terrorism related charges who claimed that he had been tortured while in Saudi custody and that the U.S. had actually been, basically, a known participant in his interrogation by Saudi officials.

 

And that led to, I think, a really important interesting Fourth Circuit decision that, at least to some degree, divided over exactly whether the Saudi interrogation was a joint venture for purposes of constitutional analysis or not. And the Supreme Court denied cert. So my sort of working assumption here is that the Supreme Court would just as well leave this to the lower courts.

 

But another point Professor Addicott made that we ought not to lose sight of is this would only get to the Supreme Court on the far side of a successful conviction. That is to say this is not the kind of question that tends to be resolved in an interlocutory stage. So I think the fact that the commissions have largely ground to a halt, the fact that, as Professor Addicott says, we haven’t seen a successful prosecution, a successful trial in the commissions in the better part of a decade now I think is a pretty powerful sign that even if the Supreme Court wanted to touch this issue—I don’t think it does—it’s not going to be able to any time soon.

 

So I think the real question is whether the trial court’s ruling in the 9/11 case that I referenced from last August -- just how profoundly is that going to shape how things unfold in the 9/11 trial? Is it really going to prejudice the government in any material way, or are these defendants, folks against whom there’s so much compelling physical evidence, that there was actually no need on the government’s part to seek the admission of statements they made while in custody? So I think that’s to me, [James] -- the bottom line here is I’m not sure that there’s one to one parity in the exact legal standards the courts are applying. But I’m not sure that that’s going to matter that much compared to the broader impact it’s going to have on the shape of this litigation and, to me, the very real possibility that the Supreme Court’s just never going to want to touch any of these cases with a ten-foot pole.

 

James Baehr:  Are there other issues raised by the cases -- the defense in some of those motions with attempting to discover some of the agents and interrogators that have been involved. Do we think that’s going to go anywhere, or what do you think about that issue?

 

Prof. Stephen I. Vladeck:  If I may, I don’t mean to leave Professor Addicott out. I’ll just say I do think that the much bigger fight in the 9/11 case—to a lesser degree in the Nashiri case; that’s the USS Cole alleged mastermind who’s also on trial before a military commission—[James], I think that’s right. I think it’s much less about the defendant’s ability to keep stuff out of these trials and much more about their ability to bring stuff in. That is to say I think there’s been a concerted effort on the part of the 9/11 defendants, on the part of Nashiri and his team to try to actually make a case about just how much misconduct they suffered while in U.S. custody, the extent to which that ought to prejudice the government’s ability to prosecute them, including for capital crimes, the extent to which that calls into question their mental capacity.

 

So yeah. I think much more of the fighting has been and will be going forward on the territory of just what outside information are these defendants allowed to make part of the trial record versus whether the government’s going to be allowed to bring in stuff that was derived, directly or indirectly, from their course of interrogations. I think that’s absolutely where the focus is going to be.

 

Prof. Jeffrey Addicott:  I agree. And I like looking forward. If you want to look to how we do it right now and how it’s done right -- because these issues are things from a time when we didn’t [inaudible 00:20:59] the process on how we would conduct these types of interrogations. I look to the recent case of the Khattala case, one of the Benghazi bombers. And he was interrogated for five days aboard a ship as he was apprehended by U.S. Navy and shipped to the United States aboard the USS New York. And the interrogation -- I think it lasted five days. And then, of course, the turnover for another group of FBI agents that did an interrogation [inaudible 00:21:28]. And that case, of course, is way up.

 

The issue was that his [inaudible 00:21:32] unlawful, and the Court, of course, said that it was not unlawful. It looked at all the procedures that were done. So the good news is I think we’ve now got it right of what the kind of rule of law needed to be applied. Again, this entire issue of the War on Terror is something that gets [inaudible 00:21:54] because so many people -- it’s real war; we can’t use the law of war. Again, we’re not fighting a nation-state. We’re fighting individuals that are [inaudible 00:22:04]. So in the early days, we had a lot of confusion about what those rules wanted to be [inaudible 00:22:1] set up. We didn’t have Supreme Court guidance as we did in the Hamdan case.

 

And the last time we had a Supreme Court decision really about War on Terror issues was 2008. And that’s been quite some time. So they don’t want to get involved in stuff. I think everybody kind of wants it to be disposed of as quickly as possible. The good news is I think we’ve got a system in place that works, but we’re still taking into custody individuals that are -- I’ll put a quote around it -- they’re “terrorists,” not one of the lawful enemy combatants to qualify under that definition [inaudible 00:22:48] to this country. We obviously have the intelligence to stop attacks on the homeland [inaudible 00:22:57] overseas. So I think we’re moving forward in the right direction now, but I’m not -- [inaudible 00:23:05] is going to say we need statements that occurred post-2006 when [inaudible 00:23:12].

 

James Baehr:  I think you’re cutting in and out a little bit, Professor Addicott. We’d mentioned the next steps and what’s happening next. We talked a little bit about how the commissions have kind of ground to a halt. Professor Vladeck, how do you think these cases are going to be resolved going forward?

 

Prof. Stephen I. Vladeck:  James, if I knew the answer to that question, I’d be a rich man. I don’t know. I think the reality is Professor Addicott mentioned the hope that things will be resolved as quickly as possible. And I think there are some pretty significant structural reasons why that hasn’t been true. That is to say I think there’s a little bit of a sort of pox on everyone’s houses that’s led to some of the mischief that has slowed down the pre-trial proceedings in the Nashiri case and in the 9/11 case. I have to say I think what’s interesting about the contrast between the topic of this conversation—that is to say suppression of evidence obtained through torture and other course of interrogation—and some of the other procedural issues that are, I think, currently besetting the military commissions is that I think if the government were willing to just sort of accept rules that looked more and more like what’s true in the civilian courts -- and there are reasons why they don’t want to do this.

 

But if they were willing to do that, I think we would have so much less, how do I say, litigation risk. That is to say that I think we’d spend so much less time litigating all of these messy pre-trial issues to a fare-thee-well in the trial court and then perhaps to the intermediate court, the Court of Military Commission Review, and then to the D.C. Circuit. And I think the opposite has been what we’ve seen. That is to say I think the government has, for better or for worse—and I think folks will disagree about which it is—really dug its heels in on some of the procedural problems that have arisen in these cases.

 

So James, just to take one example, I think folks may be loosely familiar with what happened in the Nashiri case where we had this remarkable ruling by the D.C. Circuit earlier this year that basically wiped out three years of pre-trial rulings by Judge Spath, the judge who had been presiding over the case, because Judge Spath had failed to disclose a potentially significant conflict of interest arising from the fact that he had been successfully pursuing a job as an immigration judge in the Justice Department while presiding over this case. I don’t mean to relitigate that case, but it’s just sort of an example of where -- had sort of there been more effort from the beginning on the part of all parties to say, “Yeah. This is a problem. Let’s figure out how to fix it” as opposed to heels digging in and backs getting up in litigation going forward, I think these cases would be moving faster.

 

But so long as the government wants to have these as capital military commission prosecutions and so long as it’s going to continue to sort of push down on each of these pressure points, James, I think the reality is we’re going to see pushback by defense counsel, pushback to some degree by the military commissions themselves as we saw in the suppression ruling from last August, and increasingly, I think, pushback from the D.C. Circuit, which I think the more it’s coming to see how the sausage is getting made in the military commissions, the more it’s not very happy with what it’s seeing.

 

So that’s why it’s very hard for me to give sort of a broad longer-term prognosis here because I think, barring some kind of significant attitudinal shift, I think we’re in for more of this pre-trial litigation up and down, up and down, up and down in the D.C. Circuit where a trial date that’s 2024 or 2025 for either the 9/11 case or Nashiri might actually be surprisingly and disturbingly optimistic. So that’s where I come from.

 

Prof. Jeffrey Addicott:  Just one comment. I’m a little more optimistic. I’m really hoping that President Trump will be able to declare an end on terror. Activities in Iraq and Syria are pretty much -- we’re trying to get out of Afghanistan. And of course, the military commission indicated the [inaudible 00:27:11] in the War on Terror and [inaudible 00:27:15]. If that occurs, perhaps we can do what we did in Jose Padilla for example, even though he’s a citizen and not liable to be tried in the military commission because of the rules. He was declared an enemy combatant by President Bush in 2002. But in 2007, [inaudible 00:27:32] in a federal court.

 

So my hope is we’ve got other evidence [inaudible 00:27:38] without having to rely on [inaudible 00:27:45] interrogation techniques and some [inaudible 00:27:48] move them into federal court. Of course, President Trump tried to do that in New York City, and that didn’t work out -- political hoops, I’m sure. But my hope and my optimism is [inaudible 00:28:00] the War on Terror [inaudible 00:28:03] position where we used self-defense if we have to. But the War on Terror now is going on, what, [inaudible 00:28:10] years. That’s [inaudible 00:28:14] is that we come to a conclusion. Yeah.

 

There’s always going to be terrorists in the world. There’s always going to be issues for self-defense and use of force. We need to be in a state of utilizing that system. If the law were to mix with domestic criminal law, it has been sour from day one, and it continues to haunt us and cause us more harm in many cases.

 

Prof. Stephen I. Vladeck:  Can I jump in on that for one second?

 

James Baehr:  Sure.

 

Prof. Stephen I. Vladeck:  So I just want to say I agree with everything Professor Addicott just said. I think what everyone thinks the government’s formal legal authority, vis-à-vis the military commissions, is, I think there’s an increasing consensus among folks of all sort of size and all stripes that the commissions really have been not successful on almost any metric. And then, the question is why not just try what we did in Ghailani, which is to move as many of these cases and as many of these detainees into the civilian court system as possible. The short answer is because Congress has said no.

 

I think it’s worth stressing that, right now, the draft of the Fiscal Year 2020 National Defense Authorization Act includes deeply similar restrictions on the president’s power to transfer Guantanamo detainees into the United States, as we’ve seen now going back a decade. I think these restrictions started, I think, as an effort by very, very moderate Democrats and Republicans to really sort of put President Obama into a bit of a box. But they’ve persisted. And so I think, again, we have a situation where there are, I think, pretty obvious avenues out of this mess that are not just put out there by one side of the debate, that are blocked because Congress has, for whatever reason, wanted to sort of dig in and dig down on this issue.

 

And I think that’s deeply unfortunate. And with every day that passes, James, we’re increasingly reaping the consequences of those restrictions.

 

James Baehr:  Well, Micah, I think we probably could start queuing some question if we have any audience Q&A.

 

Micah Wallen:  Absolutely. While we wait for a few questions to line up, did you have any other questions to ask the speakers?

 

James Baehr:  I don’t know, gentlemen, if you have any kind of parting thoughts on either where we’ve come from, where we are now, or where we’re going before we open up for questions.

 

Prof. Jeffrey Addicott:  Well, I guess I think, again, the Congress is true -- the Democratic control of Congress when this congressional opinion occurred [inaudible 30:43] was that said [inaudible 00:30:46] for people, detainee of the United States without our permission, etc., etc. So the political [inaudible 00:30:55] have meddled with this type of activity. But my hope is that, again -- and I think we can see this on the horizon. If we could get some type of an agreement to end the conflict in Afghanistan under President Trump’s leadership, we should be able to also buy the Congress out of their mind set and dispose of this matter in an efficacious matter.

 

And [inaudible 00:31:25]. We’re down to a very low number now of -- what is it? -- less than 50. We can find a way to matriculate those individuals through the legal system or [inaudible 00:31:37] countries that we can find that will take them and put a close to this chapter and move on.

 

James Baehr:  Okay.

 

Micah Wallen:  We also have another question lined up now. So without further ado, we’ll go to our first question.

 

Caller 1:  I’m trying to find out if [inaudible 00:31:52] have made any difference in the [inaudible 00:31:55], as far as enhanced interrogation and torture.

 

James Baehr:  I think the question was is there any meaningful difference between enhance interrogation and torture?

 

Prof. Stephen I. Vladeck:  I’ll take that first. This is Steve Vladeck. I’ll just say I think -- I generally use the term -- and I think a lot of folks use the term enhanced interrogation techniques to refer to the entire battery of methods that the CIA especially—and to a lesser degree, the military—used in the, I think, since repudiated interrogation program in the earlier part of the last decade. I don’t think all of those techniques were, on almost any definition, torture. I think many of them were not. The relevant U.S. laws prohibit not just torture but also cruel, inhuman, and degrading treatment.

 

And I think a number, if not the majority of the techniques that were used in this system, were at least brushing up against that definition. I should say Professor Addicott alluded to this earlier. It’s worth saying this explicitly. Thanks to something called the McCain-Feinstein Amendment, which Congress passed as part of the FY2016 National Defense Authorization Act, the relevant legal restriction is no longer based upon whether the underlying interrogation rises to the level of torture or cruel, inhuman or degrading treatment. Instead, the way the law’s written today basically government interrogators, who are in any uniform, are only allowed to use those interrogations methods specifically set out in the Army Field Manual.

 

And so the McCain-Feinstein Amendment took the tack of, instead of trying to sort of trigger this ongoing debate over what is and what is not torture, exhaustively identifying the list of methods that government interrogators are allowed to use. That’s the relevant law today. I think that’s part of why, as Professor Addicott suggested, much of this debate is largely about the legacy of abuses that were perpetrated in the past as opposed to ongoing concerns about what the government is doing today.

 

Micah Wallen:  So I just want to mention there are no other questions in the queue. So if you or the speakers have any closing remarks -- I’ll chime back in if we do get a question. But for now, if either speaker has closing remarks, now would be a good time.

 

James Baehr:  Well, perfect. I’m so thankful all you gentlemen were able to join us today and for all your good work in the national security space. And hopefully, this issue will continue to raise great questions that are resolved in a great way. So thank you so much for being part of the teleforum here today and appreciate your time.

 

Prof. Stephen I. Vladeck:  Thanks, James, and thanks to The Federalist Society for hosting this. I think it’s important to remember that there’s still 40 detainees at Guantanamo. So these are conversations that are still worth having.

 

Micah Wallen:  And on behalf of The Federalist Society, I’d like to thank our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.