by Michael Dorf
The Senate Select Committee Report on Intelligence (i.e., CIA torture) is horrifying in numerous ways, so much so that it is easy to be overwhelmed by the details. Here I'll focus on one that has generated some considerable attention: the revelation that the CIA used "rectal feeding" on at least five detainees "without documented medical necessity."
Rectal feeding is exactly what it sounds like. Food is forced into the prisoner's rectum. For example, the report states that one hunger striking prisoner's lunch "was 'pureed' and rectally infused. Additional sessions of rectal feeding and hydration followed."
Rectal feeding was originally developed as a means of providing nutrition for people who could not eat regularly--either because they were incapable of doing so or refused to do so--but was largely replaced in medicine once intravenous drips and other methods became reliable. The CIA used rectal feeding and hydration on Khan and other prisoners who were engaging in hunger strikes.
There is no really good method for providing unwanted food and water to a hunger striker. An IV can be difficult to administer to a struggling prisoner and takes a long time. As I noted in a Verdict column last year, it is not even clear that it is legal to force-feed prisoners via a nasogastric tube. But at least there's a plausible medical argument for using an IV and/or nasogastric tube if one has decided that forced feeding is appropriate. By contrast, there was no medical reason why the CIA chose rectal feeding and hydration for its prisoners. Instead, the Report concludes, the method was chosen as a means of exercising total control over prisoners.
The CIA used rectal feeding and rectal hydration--rather than some less instrusive method of forced feeding or no forced feeding at all--specifically for the purpose of inflicting pain and humiliation on the prisoners. Put more starkly, in addition to threatening to rape the mothers of some of its prisoners, the CIA used rectal feeding and rectal hydration to anally rape prisoners.
International law from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Rome Statute for the International Criminal Court all make clear that systematic use of rape or other serious sexual violence is a war crime and/or a crime against humanity. Now it's true that President Clinton signed but the Senate never ratified the Rome Statute as a treaty of the U.S., but the U.S. fully supported the ICTY and ICTR. For example, in 2005--while the Bush/Cheney/CIA prisoner torture program was still in effect--Secretary of State Condolezza Rice met with the leaders of both the ICTY and the ICTR, and "expressed the full support and appreciation of the United States for the work of the Tribunals." More broadly, despite procedural objections to particular tribunals, administrations of both parties have long condemned the systematic use of rape as a military weapon.
No doubt the Bush/Cheney/CIA torture apologists will now split hairs. You can't rape someone with puree, they'll say (ignoring the tube through which the puree was delivered). Or they'll say that so long as one purpose was to deliver nutrition, it can't be called rape. Etc.
The semantic debate is a distraction, much in the way that the debate over the use of the word "torture" is a distraction. As Senator McCain stated in support of the Report's release, the CIA's "harsh methods of interrogation" were torture in the ordinary sense of the word. But even if there could be some technical legal sense in which they were not torture (and I think that the argument fails even as a technical matter), so what? The key treaty (which the U.S. has ratified) forbids not only "torture," but, as its very name states, also "Other Cruel, Inhuman or Degrading Treatment or Punishment."
The claims by the likes of former CIA Director Michael Hayden that his agency's tactics were not technically torture, if true, could be relevant to some aspects of individual criminal liability, but they are completely irrelevant to the question of legality. The tactics were indisputably "cruel, inhuman or degrading," and thus indisputably illegal.