The Cumulative Effect: A Medico-Legal Approach to United States Torture Law and Policy

Essex Human Rights Review. Vol. 145, No. 6, 2009

26 Pages Posted: 8 Oct 2011  

Alexa Koenig

University of California, Berkeley - School of Law; University of San Francisco

Eric Stover

University of California, Berkeley

Laurel E. Fletcher

University of California, Berkeley - School of Law

Date Written: December 1, 2009

Abstract

In the weeks following the events of September 11, 2001, the Bush administration granted the CIA authority to set up detention facilities known as ‘black sites’ outside the United States, and to employ new interrogation procedures on suspected terrorists taken into custody. Recently released legal memoranda by the US Department of Justice’s Office of Legal Counsel condoned the use of several interrogation techniques (such as water-boarding and prolonged sleep deprivation), which the US itself had previously condemned as torture. This paper examines the legal rationalizations the Bush administration advanced to circumvent international and national laws prohibiting torture and other forms of cruel, inhuman, and degrading treatment. It also juxtaposes these rationalizations with medical evidence of the physical and psychological effects of torture and other forms of cruel, inhuman, and degrading treatment. Finally, it recommends several prohibitions and safeguards that the Obama administration should enact to prohibit torture and prevent authorized interrogation techniques from being used in such a way that their cumulative effect results in torture or illegal cruelty. Governments must consider the cumulative effect of interrogation practices and conditions of confinement when creating policies and procedures designed to prevent torture. Long-term political and legal policies must consider both the legal definitions of torture used in international law and the medico-legal evidence that certain interrogation techniques when used together, or in succession and over extended periods, can amount to torture. Finally, the paper calls on the Obama administration to establish an independent, non-partisan commission to investigate and publicly report on the post-9/11 treatment of detainees suspected of terrorist activities who have been held in US custody.

Keywords: Torture, CID, International Law, Military Tribunals, Black Sites, Guantanamo, War on Terror, Interrogation

Suggested Citation

Koenig, Alexa and Stover, Eric and Fletcher, Laurel E., The Cumulative Effect: A Medico-Legal Approach to United States Torture Law and Policy (December 1, 2009). Essex Human Rights Review. Vol. 145, No. 6, 2009 . Available at SSRN: https://ssrn.com/abstract=1939976

Alexa Koenig (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

University of San Francisco ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

Eric Stover

University of California, Berkeley ( email )

310 Barrows Hall
Berkeley, CA 94720
United States

Laurel E. Fletcher

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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