By Coleman Thomas | Editor

December 21, 2023

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As a result of 9/11, the United States has made countering terrorism a top priority in the national security field. On September 17th, 2001, President George W. Bush granted the CIA the power to “covertly capture and detain individuals” with connections to terrorist activities or groups.[1] During these detentions, interrogators may employ enhanced interrogation techniques (EITs), such as waterboarding, against detainees to extract information because they believe that fake drowning is a helpful motivator for these detainees to divulge information.[2]  

In cases involving a United States government official employing EITs against a detainee, the courts have been unable to hold government officials liable for torture because of the doctrine of qualified immunity.[3] Qualified immunity allows a government official to escape liability if the law was not “clearly established” at the time of the act, or a reasonable government official would not have known that their actions violated a constitutional or statutory right.^[4] The “clearly established” part of this qualified immunity test is known as the liability prong. In contrast, the second part of this test is known as the legality prong.^[5]

Traditionally, the courts have not needed to perform a complete qualified immunity analysis because the courts have relied on the liability prong of qualified immunity.[6] The courts have consistently and wrongfully determined that the EITs employed by government officials were not “clearly established” to violate a detainee’s constitutional or statutory rights. Then, the court’s analysis stops there and acquits the government official of any charge.[7]

However, due to the passage of the McCain-Feinstein Amendment to the Detainee Treatment Act of 2005 (DTA), the court’s analysis of qualified immunity needs to change and consider both prongs of qualified immunity.[8] The McCain-Feinstein Amendment forces all government officials to adhere to the Army Field Manual (FM 34-52) when employing EITs against detainees.[9] The McCain-Feinstein Amendment’s purpose and intent were to fulfill the liability prong of qualified immunity by making it clear that the “United States should not engage in torture again” by restricting EITs to those listed in FM 34-52.[10] The McCain-Feinstein Amendment “clearly establishes” that any EITs not expressly mentioned in FM 34-52 violate a detainee’s constitutional or statutory rights, especially when the detainee is a United States citizen.[11]

Now that the liability prong of qualified immunity is fulfilled, the courts are forced to address the liability prong of qualified immunity, potentially holding government officials liable for torture in the future. This new, complete qualified immunity analysis will lead to many future implications. One future implication is that this analysis must be applied to any future cases concerning detained United States citizens and EITs. A second future implication of this complete qualified immunity analysis is the possibility of detainees raising other tort claims not listed in FM 34-52, specifically the tort of intentional infliction of emotional distress.[12] Lastly, the court must carve out an exception to this complete qualified immunity analysis in the event that the United States is faced with an imminent attack threatening the lives of thousands of Americans and techniques listed in FM 34-52 are not producing information.

 

[1] S. Select Comm. on Intel., Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, S. Rep. No. 113-228, at xviii (2014).

[2] Office of the Inspector General, Special Review: Counterterrorism Detention and Interrogation Activities (September 2001-October 2003), at 15 (Report No. 2003-7123-IG) (2004). 

[3] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[4] Id.

[5] Id.

[6] Padilla v. Yoo, 678 F.3d 748, 750 (9th Cir. 2012).

[7] Id.

[8] Ctr. for Victims of Torture, McCain-Feinstein Anti-Torture Amendment: Strengthens U.S. Ban on Torture (2015), https://www.cvt.org/sites/default/files/attachments/u11/downloads/McCain-Feinstein%20Amendment%20Factsheet_November%202015.pdf.

[9] Id.

[10] Id.

[11] Id.

[12] See Dep’t of the Army, FM 34-52 Intelligence Interrogation A-1–A-2 (1992), https://irp.fas.org/doddir/army/fm34-52.pdf.