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CERL Panel discusses Senate report on enhanced interrogation

March 10, 2015

On February 25, in response to the Senate Select Committee on Intelligence Study of the CIA’s Detention and Interrogation Program, the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania Law School, in collaboration with Penn’s new Perry World House, hosted a public panel at the National Press Club in Washington, D.C. to discuss the report’s findings.

CERL is a non-partisan interdisciplinary institute dedicated to the preservation and promotion of the rule of law in twenty-first century warfare and national security. It represents the vision of its founder and director, Professor Claire Finkelstein, who is the Algernon Biddle Professor of Law and Professor of Philosophy, in uniting scholars and policymakers from various fields in a multi-disciplinary conversation on some of the most challenging issues of our time, drawing from the study of law, philosophy, and ethics.

Moderated by Professor Finkelstein, the panel featured John D. Altenburg, Jr., a retired U.S. Army Major General and Of Counsel at Greenberg Traurig, LLP; Juan E. Mendez, U.N. Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment; Alberto J. Mora, former General Counsel to the Department of the Navy and a Senior Fellow at the Kennedy School of Government; and Stephen N. Xenakis, a retired U.S. Army Brigadier General and CERL Executive Board Member.

In the course of the discussion, the panelists tackled a number of issues being debated in light of the Senate report, including the effectiveness of enhanced interrogation, what constitutes torture, and if torture is ever an acceptable method for gathering intelligence.

Xenakis, who is a psychiatrist, spent time at Guantanamo Bay and saw the effects of interrogation techniques on detainees. “All of them,” he said, “in one way or another have been deeply affected.” He also addressed the claims that these techniques were successful in obtaining information from the detainees, saying that the examples cited to support such claims are based on anecdotal evidence which is “the lowest level of evidence.”  He added, “A broken clock is right twice a day, and you don’t know when it’s going to be right.”

Mendez, who himself was subjected to torture and detention by the Argentinian military dictatorship, explained that while international law distinguishes between cruel, inhuman, and degrading treatment and torture, techniques such as waterboarding, sleep deprivation, and use of stress positions — especially when applied in combination — are all “undoubtedly torture.”

“Calling it something else is just playing with words and euphemisms,” he said.

When Alberto Mora first learned of the enhanced interrogation used at Guantanamo, he thought the authorization of such techniques was a legal mistake. “For the United States to turn its back on these legal mandates and this human rights legacy and then to adopt the discretionary use of the application of cruelty to individuals for any state reasons causes remarkable damage to who we are as a nation and what we seek to achieve internationally,” he said.

While several members of the panel doubted the effectiveness of enhanced interrogation, General Altenburg disagreed.  He nevertheless argued that such techniques are unwarranted under all circumstances.

“I think that torture can be effective,” he said. “I think it makes no difference whether it’s effective or not. The law’s very clear; the convention’s very clear. It doesn’t make any difference what your national security interests are, what you believe the threat to be: it is always illegal!”

The panel then went on to discuss the role of professionals in national security efforts, focusing particularly on the defense of the CIA interrogation program offered by lawyers in the Office of Legal Counsel (OLC). They discussed whether OLC lawyers broke the law by defending the use of torture in interrogations, and if so whether they should be prosecuted for lending their assistance to the promulgation of illegal techniques.