Legally Speaking "Will We Keep Rockin' In the Free World? Music, Torture, and Gitmo"

John G. Browning Oct. 29, 2009, 4:45am

On Oct. 22, a coalition of liberal activists and musicians announced the launch of the National Campaign to Close Guantanamo, an effort designed to restore momentum to President Obama's now-stalled intent to shut down the detention facility.

The group has signed on to legal action initiated by the National Security Archive (a purportedly independent non-governmental research institute based at the George Washington University) in order to probe the use of loud music in the interrogation and alleged torture of Guantanamo Bay detainees.

According to the Freedom of Information Act (FOIA) petitions directed to the Department of Defense, and others, the National Security Archive is seeking "all documents, including but not limited to intelligence reports, briefings, transcripts, talking points, meeting minutes, memoranda, cables, audio/visual recordings, and emails produced by the Central Intelligence Agency concerning the use of loud music as a technique to interrogate detainees at U.S.-operated prison facilities at Guantanamo, Iraq, and Afghanistan during 2002-present."

Thomas Blanton, the NSA's executive director, maintains that "at Guantanamo, the U.S. government turned a jukebox into an instrument of torture."

The musicians who have lent their names to help spearhead this campaign are an eclectic group, with the common denominator being left-leaning politics rather than musical genres: Trent Reznor of Nine Inch Nails, Tom Morello of Rage Against The Machine, R.E.M., hip-hop band The Roots, country artists Steve Earle and Roseanne Cash, Pearl Jam, Jackson Browne, Talking Heads' David Byrne, Bonnie Raitt, and others. The artists are anything but shy about stepping onto the soapbox.

Tom Morello said "Guantanamo is known around the world as one of the places where human beings have been tortured – from waterboarding, to stripping, hooding and forcing detainees into humiliating sexual acts – playing music for 72 hours in a row at volumes just below that to shatter the eardrums.

"Guantanamo may be Dick Cheney's idea of America, but it's not mine. The fact that music I helped create was used in crimes against humanity sickens me – we need to end torture and close Guantanamo now."

Michael Stipe of R.E.M. chimed in, "To now learn that some of our friends' music may have been used as part of the torture tactics without their consent or knowledge is horrific. It's anti-American, period."

Torture? Have you listened to some of your latest studio efforts, Tom? At least detainees didn't have to listen to John Tesh or Yanni. And as for "crimes against humanity," have you paid attention to how high concert ticket prices have gotten?

Perhaps I'd have a little bit more sympathy for musicians straining to be socially conscious if so many of them hadn't allowed their artistic work to be regurgitated as wallet-fattening, credibility-reducing advertising tunes (et tu, Bob Dylan?).

It's not like moral preening and self-importance are anything new to liberal rockers. During President Reagan's 1984 re-election campaign, Bruce Springsteen demanded that Reagan's campaign staff quit using the Jersey rocker's anthem "Born in the U.S.A."

In 2000, Tom Petty vetoed the Bush campaign's use of "I Won't Back Down." Even more recently, Jackson Browne threatened to sue John McCain's campaign over its use of his song "Running on Empty" (apparently the California singer has fewer moral qualms about domestic violence than he does about conservative politics).

And it's not as if the use of music as psychological warfare is shockingly original. In 1989, U.S. troops drove deposed Nicaraguan strongman Manuel Noriega nuts, blaring Van Halen and other rock groups while Noriega was holed up in Panama City's Vatican Embassy.

During the Branch Davidian standoff in Waco, ATF agents reportedly blasted songs including Nancy Sinatra's "These Boots Were Made For Walking" (an image that makes me wax nostalgic for Will Ferrell's "Janet Reno's Dance Party" skits on Saturday Night Live).

One of the things that really bothers me about this is the misguided take on the legal system. Kate Doyle, an analyst for the National Security Archive, hinted that some of the musical artists involved are contemplating filing copyright infringement lawsuits against the U.S. government, saying she'd be "surprised if some of them weren't thinking about it."

Unfortunately for Trent Reznor, Tom Morello, and company, such lawsuits would be, in all likelihood, legally untenable. You see, copyright law gives the owners of copyrights in musical compositions (the lyrics as well as the music) the right to control public performances of the work (whether live or recorded).

But it doesn't provide copyright owners the right to control private performances; R.E.M. or Pearl Jam has no more right to sue over their music being played as an interrogation soundtrack than they do suing you or me for our atrocious singing along to our favorite tunes at a party, in our living rooms, or in our cars.

Was music used as part of the Guantanamo Bay interrogation techniques? Although a spokesperson for Joint Task Force Guantanamo claims that the U.S. has not used loud music on detainees since the fall of 2003, the official records indicate otherwise.

A November 2008 report by the Senate Armed Services Committee into the treatment of detainees makes several references to the use of loud music as an interrogation tool.

"Army Regulation 15-6 Final Report - Investigation Into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility" (amended June 9, 2005) states, among other findings, that "on numerous occasions between July 2002 and October 2004, detainees were yelled at or subjected to loud music during interrogation."

According to the Pentagon, loud music (particularly Metallica, Eminem and Britney Spears) were played as a "futility technique" – to create futility in the minds of the detainees if they were not cooperating. Detainees were also played "cultural music" more familiar to them as an incentive.

A formerly top secret CIA document dated December 2005 refers to loud music being played as a way to "mask sound and prevent communication among detainees." The same report refers to the music being played at 79 decibels or lower (roughly equivalent to a garbage disposal) – hardly the eardrum-shattering levels claimed by the indignant musicians.

There are also references to specific instances of music being used. The interrogation of Khalid Sheikh Mohammed, one of the chief architects behind the 9/11 attacks, incorporated the use of loud music. So did the interrogation of detainee Mohamedou Ould Slahi. Over a 10-day period in July 2003, Slahi was reportedly subjected to a looped soundtrack of the song "Let The Bodies Hit The Floor" by Drowning Pool.

The FOIA petition filed by the National Security Archive seems to point to a fairly diverse playlist used at Guantanamo, and this appears to be corroborated by documents already made public as well as interviews with former detainees.

The playlist reportedly included hard rockers like Marilyn Manson, AC/DC, Metallica, Rage Against The Machine and Nine Inch Nails, but it also included the Red Hot Chili Peppers, Queen, Prince, Pink, Tupac Shakur, Meatloaf, Christina Aguilera, Bruce Springsteen, the Bee Gees and Don "American Pie" McLean.

Lighter favorites included James Taylor and Neil Diamond (elevator music is apparently not addressed in the Geneva Convention). Oddly enough, the alleged torture soundtrack also features the "Meow Mix" cat food jingle, the "Barney" theme song, and an assortment of Sesame Street songs! (Admittedly, this last revelation pushes me closer to agreeing with the whole torture argument).

Let me be perfectly clear about something: I believe that actual torture violates both U.S. and international law, as well as every moral underpinning of American society. Plenty of our leaders, including Sen. John McCain – who himself endured years of torture at the hands of the North Vietnamese – have made it abundantly clear that sanctioning torture runs counter to the values we espouse as a nation.

But I don't oppose using techniques short of torture to extract information that will save lives and keep us secure, especially when the methods themselves more closely resemble what would be endured by a boot camp recruit or a fraternity pledge, and when the average teenager listens to the same music at even louder volumes.

I also have a problem with liberal rockers threatening baseless lawsuits from the comfort and safety of the mansions bought and paid for by the very music they want to restrict.

More than 3,000 Americans died in the Sept. 11, 2001, terrorist attacks, and if playing music that jihadists bent on our destruction don't like, at levels they find unpleasant, prevents future attacks, I'm all for it.

One of the selections on the so-called "torture playlist" that hasn't been highlighted by the liberal activists or the musicians summoning up their righteous indignation is a very familiar one – "The Star Spangled Banner."

If you ask me, you can play our national anthem to detainees as long as you want, as loud as you like – anything to remind them that America remains a land of the free, because of the brave.

John Browning is a partner in the Dallas office of Thompson, Coe, Cousins & Irons, L.L.P. He may be contacted at:

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