By: DJ Harris, Junior Editor
“I was taken to Kandahar, in Afghanistan, where American interrogators asked me the same questions for several weeks: Where is Osama bin Laden? Was I with Al Qaeda? No, I told them, I was not with Al Qaeda. No, I had no idea where bin Laden was. I begged the interrogators to please call Germany and find out who I was. During their interrogations, they dunked my head under water and punched me in the stomach; they don’t call this waterboarding but it amounts to the same thing. I was sure I would drown.
At one point, I was chained to the ceiling of a building and hung by my hands for days. A doctor sometimes checked if I was O.K.; then I would be strung up again. The pain was unbearable.
After about two months in Kandahar, I was transferred to Guantánamo. There were more beatings, endless solitary confinement, freezing temperatures and extreme heat, days of forced sleeplessness. The interrogations continued always with the same questions. I told my story over and over — my name, my family, why I was in Pakistan. Nothing I said satisfied them. I realized my interrogators were not interested in the truth.”
The above is an except taken from Murat Kurnaz’s op-ed in the New York Times. Kurnaz, a Turkish citizen and legal resident of Germany, was detained by U.S. in Pakistan while riding a bus and spent over 5 years as a detainee of the United States. Four of those years were spent in one of the detainee camps at the United States’ Naval Base at Guantanamo Bay, Cuba.
As the detainee program at Guantanamo Bay and the infamous Department of Justice (DOJ) “torture memos” turn ten years old this month, the nation once again finds itself debating enhanced interrogation techniques, human rights, and the future of the detainment camps at Guantanamo Bay.
At the center of this reinvigorated debate is the critically acclaimed and controversial film “Zero Dark Thirty.” Directed by Academy Award winning director Kathryn Bigalow, the film has simultaneously garnered artistic praise while simultaneously becoming a lightning rod for the ongoing debate regarding enhanced interrogation. Presenting “ history’s greatest manhunt for the world’s most dangerous man,” the film explores America’s efforts to track down Usama bin Laden after 9/11. Focused most intently on the Central Intelligence Agency’s (CIA) work in Afghanistan and Pakistan the film presents enhanced integration techniques such as waterboarding, humiliation, and prolonged sleep deprivation along with physical violence as a means of obtaining vital intelligence in search for bin Laden.
This presentation of classed harsh or “enhanced interrogation techniques” that has sparked much of the controversy. Critics have stated that the film over emphasizes the role enhanced interrogation techniques played in discovering the location of bin Laden. In a joint letter to the Chairman and CEO of Sony Pictures Entertainment, members of the Senate Select Committee on Intelligence called the film “factually inaccurate,” and called on Sony to make changes reflecting the fact that the film’s portrayal of torture in the hunt for bin Laden is apart of the plot’s “fictional narrative.” Relying on their own investigative report, the Senators claimed torture did not have a significant role in locating Usama bin Laden.
The CIA, too, has reacted negatively to the films portrayal of enhanced integration in the film. In a letter to CIA employees, interim CIA Director Michael Morell stated that “Zero Dark Thirty” “creates the strong impression that the enhanced interrogation techniques that were part of our former detention and interrogation program were the key to finding bin Laden. That impression is false.”
That said, many find that the film presents an accurate portrayal of the role that enhanced interrogation techniques played in the gathering of crucial intelligence regarding bin Laden’s location. In the letter Morell admits that “some” intelligence was gained through such enhanced interrogation techniques. Additionally, CIA officials including a former Director of the CIA Michael Hayden have disputed the assertions that significant intelligence came absent enhanced interrogation methods. Hayden asserts that the “crucial component” of intelligence that ultimately led to the raid on bin Laden’s compound was a product of enhanced interrogation.
That said, the current debate over enhanced interrogation techniques does not end with “Zero Dark Thirty” or the search of Usama bin Laden, as the film and the controversy surrounding is merely as microcosm of the larger debate regarding the use of such interrogation techniques by the United States and the nation’s various detainment programs related to the ‘War of Terror.’
The legal framework for torture appears plain enough. The Geneva Conventions, applicable in international conflicts involving any nation that has ratified the Conventions, prohibits the “torture,” “cruel treatment,” and degrading treatment of persons detained during a conflict. The United States’ War Crimes Act of 1996 makes it a federal crime to commit such a “grave breach” of the Geneva Conventions, including torture and severe pain and mental suffering. Moreover, the federal crime of “torture” has been defined to include the infliction of “severe physical or mental pain or suffering” by someone acting under the color of state law. Under both federal and international law, any method of interrogation that induces such pain or suffering would appear to fall into the category torture.
The legal landscape regarding the line between torture and permissible interrogation methods was blurred in the post-9/11 era. It has been well established that after 9/11 the Bush Administration authorized the use of enhanced interrogation techniques such as waterboarding, hypothermia, abdomen strikes, and stress positions in detainment camps operated by the CIA and Department of Defense (DOD).
To justify these interrogation practices, DOJ attorneys circulated the now infamous “torture memos”. The memos asserted that enhanced interrogation techniques employed by the United States on various detainees were permissible. The memos set out that enhanced integration techniques do not rise to the level of torture within the meaning of Section 2340A and the United Nations’ Convention Against Torture. Most notably, the initial memorandum makes the somewhat dubious claim that treatment may be “cruel, inhuman, and degrading” and still not produce enough pain and suffering to be considered torture. Additionally, the initial memo puts forth the notion that such a Congressional action barring such interrogation techniques would be unconstitutional, as it would interfere with the President’s ability to be the Commander-in-Chief during a period of war.
However, after the building criticism of harsh interrogation procedures, the Detainee Treatment Act of 2005 was passed by Congress and ultimately signed into law my President Bush. That Act, which prohibits inhumane and cruel treatment of detainees of the United States left room for the President to authorize harsh integration techniques as it still defined torture in the same broad terms as prior acts. In 2008, the U.S. Senate voted to limit the interrogation techniques employed by the United States in detainment camps to only those in the 2006 Army Field Manuel, however, the bill was vetoed by President Bush.
It was widely expected that then President-elect Barrack Obama would finally terminate the United States’ practice of harsh interrogation techniques once in office. In 2009, one of the first executive orders signed by President Obama was Executive Order 13491. The Order not only required the closure of CIA detention centers, but also prohibited methods of interrogation out of those contained in the updated Army field manual and officially prohibited internal reliance on any previous policies issued regarding such interrogations (i.e. the torture memos). That said, the Executive Order included one significant caveat: that military and other government agencies are bound only to those techniques contained within the Army Field Manual “unless the attorney general with appropriate consultation provides further guidance.” This leaves significant room for the Executive Branch to permit enhanced interrogation techniques that many would consider torture. Moreover, the Senate Report on interrogation techniques by the CIA during the Bush Administration has remained classified and is unavailable to the public. Perhaps more disturbing to many advocates of prisoner’s rights, is that President Obama has recently renewed a law that restricts the transfer of current detainees at Guantanamo to other detention facilities. Any detainee hoping for a non-military commissioned trail will have to wait until at least 2014.
Ten years from the commencement of the detainee program at Guantanamo Bay and the initial circulation of the “torture memos, ” questions remain unanswered as to the use and legality of enhanced interrogation techniques.
 Murat Kurnaz, “Notes From A Guantànamo Survivor” The New York Times (January 8, 2013) http://www.nytimes.com/2012/01/08/opinion/sunday/notes-from-a-guantanamo-survivor.html?ref=sunday.
 N.Y. Times Overview—U.S. Naval Base at Guantanamo Bay in Cuba, The New York Times, (Updated January 3, 2012) http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/guantanamobaynavalbasecuba/index.html?inline=nyt-geo.
 “Torture Documents Released 8/24/2009,” The American Civil Rights and Civil Liberties Union (August 24, 2009), http://www.aclu.org/human-rights_national-security/documents-delivered-responsive-torture-foia (presenting an index of internal memos between DOJ attorneys concerning the CIA’s detainment programs and enhanced interrogation).
 Kate Nocera, “‘Zero Dark Thirty’ Sparks Torture Debate, ” POLITICO (January 8, 2013), http://www.politico.com/story/2013/01/zero-dark-thirty-sparks-torture-debate-85875.html.
 Ben Childs, “Kathryn Bigelow’s Bin Landen Film to Star Joel Edgerton,” The Guardian (January 6, 2012), http://www.guardian.co.uk/film/2012/jan/06/kathryn-bigelow-bin-laden-joel-edgerton.
 That said it should be noted prior the films release several members of Congress expressed concern that the writers and producers of the film were given classified information by Obama Administration and other CIA operatives.
 Feinstein Releases Statement on ‘Zero Dark Thirty’ (December 19, 2012), http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=b5946751-2054-404a-89b7-b81e1271efc9.
 Chantal Valery “CIA chief decries torture in Osama bin Laden hunt movie,” Google Hosted News (December 22, 2012), http://www.google.com/hostednews/afp/article/ALeqM5ja1yp1GMw9mE2wKZNhxRsWpi2Y3A?docId=CNG.f3f54cd6ad2348c1fd3773962ec75cac.111.
 Fourth Geneva Convention, Art. 3 http://www.icrc.org/IHL.nsf/1595a804df7efd6bc125641400640d89/6756482d86146898c125641e004aa3c5?OpenDocument.
 18 U.S.C. 2340-2340A
 See e.g., “ Sources: Top Bush Advisors Approved ‘Enhanced Interrogation’” Jan Crawford Greenburg, Howard l. Rosenberg and Ariane de Vogue, ABC NEWS (April 9, 2008) http://abcnews.go.com/TheLaw/LawPolitics/story?id=4583256&page=1
 Jay Bybee “Memorandum to Alberto R. Gonzalez Counsel to The President” (August 1, 2012), http://dspace.wrlc.org/doc/bitstream/2041/70964/00355_020801_001display.pdf.
 42 U.S.C.A. § 2000dd.
 Charlie Savage, “Bush Could Bypass New Torture Ban,” The Boston Globe (January 4, 2012), http://www.boston.com/news/nation/washington/articles/2006/01/04/bush_could_bypass_new_torture_ban/?page=full.
 Army Field Manual was amended in 2006 and explicitly prohibits some harsh interrogation methodologies, including waterboarding.
 Richard Cowan, “Bush Vetoes Bill Outlawing Waterboarding,” Reuters (March 8, 2008) http://www.reuters.com/article/2008/03/08/us-usa-waterboarding-veto-idUSN0736443620080308?sp=true
 Michael Isikoff, “The End Of Torture” Newsweek via The Daily Beast (January 21, 2009) http://www.thedailybeast.com/newsweek/2009/01/21/the-end-of-torture.html.
 Executive Order 13481 http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/
 Tony Camerino, “Senate Intelligence Report On Interrogations Should Be Made Public” The Hill.com (January 9, 2013), http://thehill.com/blogs/congress-blog/homeland-security/276285-senate-intelligence-report-on-interrogations-should-be-made-public.
 “US Defense Bill Signing Backtracks on Guantanamo” The Human Rights Watch (January 3, 2013), http://www.hrw.org/news/2013/01/03/us-defense-bill-signing-backtracks-guantanamo