The OLC, as the New York Times explained in September 2007,
holds a uniquely influential position, as it "interprets all laws that
bear on the powers of the executive branch. The opinions of the head of
the office are binding, except on the rare occasions when they are
reversed by the attorney general or the president." The legal opinions
were, therefore, regarded as a "golden shield" by the administration,
although, as lawyer Peter Weiss noted after I last wrote about the Bush administration's war crimes, "it cannot be binding if it violates the constitution, or a jus cogens
prohibition of international law, e.g. torture, or, perhaps, if it was
made to order for the executive, as you demonstrate it was."
1: The "torture memos" (August 2002)
The first of the four memos (PDF), dated August 1, 2002, is a companion piece to the notorious "Torture Memo" of the same day (PDF),
leaked in the wake of the Abu Ghraib scandal, which, notoriously,
attempted to redefine torture as the infliction of physical pain
"equivalent in intensity to the pain accompanying serious physical
injury, such as organ failure, impairment of bodily function, or even
death," or the infliction of mental pain which "result[s] in
significant psychological harm of significant duration e.g. lasting for
months or even years."
These definitions were justified as legitimate attempts to interpret
what the memo's authors - OLC lawyer John Yoo and Assistant Attorney
General Jay S. Bybee - regarded as imprecision in the wording of the
prohibition against torture in the UN Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,
as implemented by Sections 2340-2340A of title 18 of the United States
Code, which defines torture as any act committed by an individual that
is "specifically intended to inflict severe physical or mental pain or
suffering ... upon another person within his custody of physical control."
In their attempts to justify the use of torture by US forces, Yoo
and Bybee not only sought to redefine "severe pain or suffering" and
"severe mental pain or suffering"; they also sought to nullify the
concept of "specific intent" by providing a defense for anyone whose
actions were undertaken "in good faith," and, in addition, noted, "Even
if an interrogation method arguably were to violate Section 2340A, the
statute would be unconstitutional if it impermissibly encroached on the
President's constitutional power to conduct a military campaign."
The
"torture memo" was disturbing enough in and of itself, of course, and
in particular because it provided so much of the justification for the
horrendous mistreatment of prisoners that followed, in Guantanamo,
Afghanistan and Iraq, but until last week the contents of the second
memo - authorizing the use of specific torture techniques for the CIA
to use on the supposed "high-value detainee" Abu Zubaydah
- had never even been glimpsed, although we knew much of what it
contained from the reports of Red Cross interviews with the 14
"high-value detainees" transferred to Guantanamo in September 2006 -
including, of course, Abu Zubaydah and Khalid Sheikh Mohammed (KSM) - which were first reported by Jane Mayer, and featured prominently in her book The Dark Side, and were then analyzed in detail by Mark Danner for the New York Review of Books, in an article published last month, and a follow-up article, accompanied by the Red Cross report itself (PDF), that was published two weeks ago.
In the 18-page memo, John Yoo and Jay Bybee approved the use of ten
techniques prohibited in the Army Field Manual, which eschews physical
violence, and, instead, lays out a series of psychological maneuvers to
secure cooperation. When applied with patience by skilled
interrogators, these techniques (which are, essentially, also followed
by several intelligence agencies including the FBI) are demonstrably
effective, and have, for years, served to demonstrate that the US is
capable of operating without resorting to the use of torture, but the
Bush administration ignored their effectiveness, introducing torture
into the military and the CIA, and sidelining those, like the FBI, who
had actually begun to achieve results with both Abu Zubaydah and some
of the Guantanamo prisoners without resorting to the use of torture.
The ten techniques - whose use is minutely micro-managed with a
chillingly cold attention to detail - include a handful of physical
tactics which, to my mind, seem mild compared to the widespread
physical violence that accompanied detention in the "War on Terror"
("attention grasp," "facial hold," and "facial slap (insult slap)"),
and a more insidious form of violence ("walling"), which involves
repeatedly hurling prisoners against a false wall. Much more disturbing
are the use of stress positions, sleep deprivation, confinement in
small boxes, waterboarding, and - straight out of George Orwell's 1984 - a proposal to prey on Zubaydah's fear of insects by placing an insect into his "confinement box."
This latter technique was, apparently, never used, but the others
all were, and the memo blithely attempted to dismiss long-standing
proof that all can be regarded as torture by being satisfied with time
limits imposed on imprisonment in the "confinement boxes," by declaring
that the use of painful stress positions (on which no time limit seems
to have been imposed) was only undertaken "to induce muscle fatigue,"
and by claiming that the well-chronicled mental collapse that can
result from sleep deprivation would, instead, only involve mild
discomfort that "will generally remit after one or two nights of
uninterrupted sleep," even though, as Yoo and Bybee also noted, "You
have orally informed us that you would not deprive Zubaydah of sleep
for more than eleven days at a time."
Justifying
the use of waterboarding - a form of controlled drowning that was known
to the honest torturers of the Spanish Inquisition as "tortura del
agua," and that, in a previous incarnation of the United States
(Vietnam), involved prosecuting US soldiers for its use - Yoo (photo,
left) and Bybee calmly approved of 20-minute sessions in which,
presumably, the 20- to 40-second procedure was repeatedly as frequently
as required, and shrugged off waterboarding's demonstrably
well-documented use as a form of torture by noting that, in the US
military schools, where it is taught in the counter-interrogation
program known as SERE (Survival, Evasion, Resistance, Escape), from
which it was reverse-engineered for the "War on Terror," it has never,
according to "experts" consulted by the administration, produced "any
adverse mental health effects."
2: The Bradbury memos (May 2005)
This assertion is, of course, monstrously untrue, as psychologist Jeffrey Kaye demonstrated in an article last week,
but the underlying premise of the August 2002 memo - that, although
torture was needed to "break" the CIA's prisoners, it was not actually
torture because it did not inflict "severe physical or mental pain or
suffering" - was spelled out much more clearly in May 2005, when the
OLC's Principal Deputy Assistant Attorney General, Steven G. Bradbury,
produced another three memos, also released last week (and available as
PDFs here, here and here), which picked up where Yoo and Bybee had left off.
Over
the course of 106 pages, as he attempted to interpret torture so that
it did not contravene the Convention Against Torture and Sections
2340-2340A of title 18 of the United States Code, Bradbury revisited
much of the ground covered by Yoo and Bybee (photo, left), but
inadvertently made it even clearer than his predecessors had that there
was a ludicrous gulf between, on the one hand, endorsing torture, and,
on the other, attempting to claim that it would not cause either severe
physical or mental harm.
As with the earlier memos, from my point of view the arguments about
the techniques not causing severe physical pain were more plausible
than those in which Bradbury attempted to argue that techniques derived
from the SERE program - which are based on teaching soldiers to resist
techniques designed to cause a complete mental collapse - do not cause
severe mental pain or suffering. The very fact that SERE psychologists
were so prominent in the CIA's torture program makes it clear that
"learned helplessness" - involving the brutal training of prisoners to
become dependent on their interrogators for every crumb of comfort in
their wretched, tortured lives - was designed not just to cause them
severe mental pain or suffering, but to completely destroy them
mentally. As Bradbury himself noted, when discussing the "conditioning
techniques" that underpin the CIA prisoners' conditions of confinement,
"they are used to 'demonstrate to the [detainee] that he has no control
over basic human needs.'"
And yet, for page after page, Bradbury concluded that "nudity,
dietary manipulation and sleep deprivation" - now revealed explicitly
as not just keeping a prisoner awake, but hanging him, naked except for
a diaper, by a chain attached to shackles around his wrists - are,
essentially, techniques that produce insignificant and transient
discomfort. We are, for example, breezily told that caloric intake
"will always be set at or above 1,000 kcal/day," and are encouraged to
compare this enforced starvation with "several commercial weight-loss
programs in the United States which involve similar or even greater
reductions in calorific intake."
In "water dousing," a new technique introduced since 2002, in which
naked prisoners are repeatedly doused with cold water, we are informed
that "maximum exposure directions have been 'set at two-thirds the time
at which, based on extensive medical literature and experience,
hypothermia could be expected to develop in healthy individuals who are
submerged in water of the same temperature,'" and when it comes to
waterboarding, Bradbury clinically confirms that it can be used 12
times a day over five days in a period of a month - a total of 60 times
for a technique that is so horrible that one application is supposed to
have even the most hardened terrorist literally gagging to tell all.
3: The ticking time-bomb scenario
The Bradbury memos are littered with fascinating snippets of
information - "Careful records are kept of each interrogation," for
example - but one of the most revealing is the establishment that,
although the array of techniques "are not used unless the CIA
reasonably believes that the detainee is a 'senior member of al-Qaeda
or [its affiliates], and the detainee has knowledge of
imminent terrorist threats against the USA or has been directly
involved in the planning of attacks," use of the waterboard is "limited
still further, requiring credible intelligence that a terrorist attack
is imminent ... substantial and credible indicators that the subject has
actionable intelligence that can prevent, disrupt or delay this attack;
and [a determination that o]ther interrogation methods have failed to
elicit the information [and that] other ... methods are unlikely to
elicit this information within the perceived time limit for preventing the attack"; in other words, the ticking time-bomb scenario, which, outside the world of Jack Bauer, has never actually occurred.
4: The relentless waterboarding of Abu Zubaydah and Khalid Sheikh Mohammed
I find this distortion of reality disturbing enough, but, having
decided that this was indeed the case with Abu Zubaydah, KSM and one
other prisoner, Abdul Rahim al-Nashiri,
the CIA and its masters then decided that, in the case of Zubaydah, it
was, as Bradbury reveals in an extraordinarily telling passage,
"necessary to use the waterboard 'at least 83 times during August
2002,'" and "183 times during March 2003" in the interrogation of KSM.
These are mind-boggling figures, and, in addition, they seem to
reveal not that each horrific round of near-drowning and panic,
repeated over and over again, defused a single ticking time-bomb, but,
instead, that it became a macabre compulsion on the part of the
torturers, which led only to the countless false alarms reported by CIA
and FBI officials who spoke to David Rose for Vanity Fair last December, or, as the author Ron Suskind reported
in 2006, after Zubaydah "confessed" to all manner of supposed plots -
against shopping malls, banks, supermarkets, water systems, nuclear
plants, apartment buildings, the Brooklyn Bridge, and the Statue of
Liberty - "thousands of uniformed men and women raced in a panic to
each target ... The United States would torture a mentally disturbed man
and then leap, screaming, at every word he uttered."
One
sign that this is indeed the case comes in a disturbing footnote, in
which Bradbury (photo, left) noted, "This is not to say that the
interrogation program has worked perfectly. According to the IG Report
[a massive and unpublished internal report that was clearly critical of
much of the program], the CIA, at least initially, could not always
distinguish detainees who had information but were successfully
resisting interrogation from those who did not actually have the
information ... on at least one occasion, this may have resulted in what
might be deemed in retrospect to have been the unnecessary use of
enhanced techniques. On that occasion, although the on-scene
interrogation team judged Zubaydah to be compliant, elements within CIA
Headquarters still believed he was withholding information [passage
redacted]. At the direction of CIA headquarters, interrogators
therefore used the waterboard one more time on Zubaydah [passage
redacted]."
5: The crucial differences between SERE and CIA waterboarding
Furthermore, as another revealing footnote makes clear, the IG Report
also noted that, "in some cases the waterboard was used with far
greater frequency than initially indicated," and also that it was "used
in a different manner" than the technique described in the DoJ opinion
and used in SERE training. As the report explained, "The difference was
in the manner in which the detainees' breathing was obstructed. At the
SERE school and in the DoJ opinion, the subject's airflow is disrupted
by the firm application of a damp cloth over the air passages; the
interrogator applies a small amount of water to the cloth in a
controlled manner. By contrast, the Agency interrogator ... applied large
volumes of water to a cloth that covered the detainee's mouth and nose.
One of the psychiatrist/interrogators acknowledged that the Agency's
use of the technique is different from that used in SERE training
because it is 'for real' and is more poignant and convincing."
In addition, the IG Report noted that the OMS, the CIA's
Office of Medical Services, contended that "the experience of the SERE
psychologist/interrogators on the waterboard was probably
misrepresented at the time, as the SERE waterboard experience is so
different from the subsequent Agency usage as to make it almost
irrelevant." Chillingly, the report continued, "Consequently, according
to OMS, there was no a priori reason to believe that applying
the waterboard with the frequency and intensity with which it was used
by the psychologist/interrogators was either efficacious or medically
safe."
© 2023 Future of Freedom Foundation
The OLC, as the New York Times explained in September 2007,
holds a uniquely influential position, as it "interprets all laws that
bear on the powers of the executive branch. The opinions of the head of
the office are binding, except on the rare occasions when they are
reversed by the attorney general or the president." The legal opinions
were, therefore, regarded as a "golden shield" by the administration,
although, as lawyer Peter Weiss noted after I last wrote about the Bush administration's war crimes, "it cannot be binding if it violates the constitution, or a jus cogens
prohibition of international law, e.g. torture, or, perhaps, if it was
made to order for the executive, as you demonstrate it was."
1: The "torture memos" (August 2002)
The first of the four memos (PDF), dated August 1, 2002, is a companion piece to the notorious "Torture Memo" of the same day (PDF),
leaked in the wake of the Abu Ghraib scandal, which, notoriously,
attempted to redefine torture as the infliction of physical pain
"equivalent in intensity to the pain accompanying serious physical
injury, such as organ failure, impairment of bodily function, or even
death," or the infliction of mental pain which "result[s] in
significant psychological harm of significant duration e.g. lasting for
months or even years."
These definitions were justified as legitimate attempts to interpret
what the memo's authors - OLC lawyer John Yoo and Assistant Attorney
General Jay S. Bybee - regarded as imprecision in the wording of the
prohibition against torture in the UN Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,
as implemented by Sections 2340-2340A of title 18 of the United States
Code, which defines torture as any act committed by an individual that
is "specifically intended to inflict severe physical or mental pain or
suffering ... upon another person within his custody of physical control."
In their attempts to justify the use of torture by US forces, Yoo
and Bybee not only sought to redefine "severe pain or suffering" and
"severe mental pain or suffering"; they also sought to nullify the
concept of "specific intent" by providing a defense for anyone whose
actions were undertaken "in good faith," and, in addition, noted, "Even
if an interrogation method arguably were to violate Section 2340A, the
statute would be unconstitutional if it impermissibly encroached on the
President's constitutional power to conduct a military campaign."
The
"torture memo" was disturbing enough in and of itself, of course, and
in particular because it provided so much of the justification for the
horrendous mistreatment of prisoners that followed, in Guantanamo,
Afghanistan and Iraq, but until last week the contents of the second
memo - authorizing the use of specific torture techniques for the CIA
to use on the supposed "high-value detainee" Abu Zubaydah
- had never even been glimpsed, although we knew much of what it
contained from the reports of Red Cross interviews with the 14
"high-value detainees" transferred to Guantanamo in September 2006 -
including, of course, Abu Zubaydah and Khalid Sheikh Mohammed (KSM) - which were first reported by Jane Mayer, and featured prominently in her book The Dark Side, and were then analyzed in detail by Mark Danner for the New York Review of Books, in an article published last month, and a follow-up article, accompanied by the Red Cross report itself (PDF), that was published two weeks ago.
In the 18-page memo, John Yoo and Jay Bybee approved the use of ten
techniques prohibited in the Army Field Manual, which eschews physical
violence, and, instead, lays out a series of psychological maneuvers to
secure cooperation. When applied with patience by skilled
interrogators, these techniques (which are, essentially, also followed
by several intelligence agencies including the FBI) are demonstrably
effective, and have, for years, served to demonstrate that the US is
capable of operating without resorting to the use of torture, but the
Bush administration ignored their effectiveness, introducing torture
into the military and the CIA, and sidelining those, like the FBI, who
had actually begun to achieve results with both Abu Zubaydah and some
of the Guantanamo prisoners without resorting to the use of torture.
The ten techniques - whose use is minutely micro-managed with a
chillingly cold attention to detail - include a handful of physical
tactics which, to my mind, seem mild compared to the widespread
physical violence that accompanied detention in the "War on Terror"
("attention grasp," "facial hold," and "facial slap (insult slap)"),
and a more insidious form of violence ("walling"), which involves
repeatedly hurling prisoners against a false wall. Much more disturbing
are the use of stress positions, sleep deprivation, confinement in
small boxes, waterboarding, and - straight out of George Orwell's 1984 - a proposal to prey on Zubaydah's fear of insects by placing an insect into his "confinement box."
This latter technique was, apparently, never used, but the others
all were, and the memo blithely attempted to dismiss long-standing
proof that all can be regarded as torture by being satisfied with time
limits imposed on imprisonment in the "confinement boxes," by declaring
that the use of painful stress positions (on which no time limit seems
to have been imposed) was only undertaken "to induce muscle fatigue,"
and by claiming that the well-chronicled mental collapse that can
result from sleep deprivation would, instead, only involve mild
discomfort that "will generally remit after one or two nights of
uninterrupted sleep," even though, as Yoo and Bybee also noted, "You
have orally informed us that you would not deprive Zubaydah of sleep
for more than eleven days at a time."
Justifying
the use of waterboarding - a form of controlled drowning that was known
to the honest torturers of the Spanish Inquisition as "tortura del
agua," and that, in a previous incarnation of the United States
(Vietnam), involved prosecuting US soldiers for its use - Yoo (photo,
left) and Bybee calmly approved of 20-minute sessions in which,
presumably, the 20- to 40-second procedure was repeatedly as frequently
as required, and shrugged off waterboarding's demonstrably
well-documented use as a form of torture by noting that, in the US
military schools, where it is taught in the counter-interrogation
program known as SERE (Survival, Evasion, Resistance, Escape), from
which it was reverse-engineered for the "War on Terror," it has never,
according to "experts" consulted by the administration, produced "any
adverse mental health effects."
2: The Bradbury memos (May 2005)
This assertion is, of course, monstrously untrue, as psychologist Jeffrey Kaye demonstrated in an article last week,
but the underlying premise of the August 2002 memo - that, although
torture was needed to "break" the CIA's prisoners, it was not actually
torture because it did not inflict "severe physical or mental pain or
suffering" - was spelled out much more clearly in May 2005, when the
OLC's Principal Deputy Assistant Attorney General, Steven G. Bradbury,
produced another three memos, also released last week (and available as
PDFs here, here and here), which picked up where Yoo and Bybee had left off.
Over
the course of 106 pages, as he attempted to interpret torture so that
it did not contravene the Convention Against Torture and Sections
2340-2340A of title 18 of the United States Code, Bradbury revisited
much of the ground covered by Yoo and Bybee (photo, left), but
inadvertently made it even clearer than his predecessors had that there
was a ludicrous gulf between, on the one hand, endorsing torture, and,
on the other, attempting to claim that it would not cause either severe
physical or mental harm.
As with the earlier memos, from my point of view the arguments about
the techniques not causing severe physical pain were more plausible
than those in which Bradbury attempted to argue that techniques derived
from the SERE program - which are based on teaching soldiers to resist
techniques designed to cause a complete mental collapse - do not cause
severe mental pain or suffering. The very fact that SERE psychologists
were so prominent in the CIA's torture program makes it clear that
"learned helplessness" - involving the brutal training of prisoners to
become dependent on their interrogators for every crumb of comfort in
their wretched, tortured lives - was designed not just to cause them
severe mental pain or suffering, but to completely destroy them
mentally. As Bradbury himself noted, when discussing the "conditioning
techniques" that underpin the CIA prisoners' conditions of confinement,
"they are used to 'demonstrate to the [detainee] that he has no control
over basic human needs.'"
And yet, for page after page, Bradbury concluded that "nudity,
dietary manipulation and sleep deprivation" - now revealed explicitly
as not just keeping a prisoner awake, but hanging him, naked except for
a diaper, by a chain attached to shackles around his wrists - are,
essentially, techniques that produce insignificant and transient
discomfort. We are, for example, breezily told that caloric intake
"will always be set at or above 1,000 kcal/day," and are encouraged to
compare this enforced starvation with "several commercial weight-loss
programs in the United States which involve similar or even greater
reductions in calorific intake."
In "water dousing," a new technique introduced since 2002, in which
naked prisoners are repeatedly doused with cold water, we are informed
that "maximum exposure directions have been 'set at two-thirds the time
at which, based on extensive medical literature and experience,
hypothermia could be expected to develop in healthy individuals who are
submerged in water of the same temperature,'" and when it comes to
waterboarding, Bradbury clinically confirms that it can be used 12
times a day over five days in a period of a month - a total of 60 times
for a technique that is so horrible that one application is supposed to
have even the most hardened terrorist literally gagging to tell all.
3: The ticking time-bomb scenario
The Bradbury memos are littered with fascinating snippets of
information - "Careful records are kept of each interrogation," for
example - but one of the most revealing is the establishment that,
although the array of techniques "are not used unless the CIA
reasonably believes that the detainee is a 'senior member of al-Qaeda
or [its affiliates], and the detainee has knowledge of
imminent terrorist threats against the USA or has been directly
involved in the planning of attacks," use of the waterboard is "limited
still further, requiring credible intelligence that a terrorist attack
is imminent ... substantial and credible indicators that the subject has
actionable intelligence that can prevent, disrupt or delay this attack;
and [a determination that o]ther interrogation methods have failed to
elicit the information [and that] other ... methods are unlikely to
elicit this information within the perceived time limit for preventing the attack"; in other words, the ticking time-bomb scenario, which, outside the world of Jack Bauer, has never actually occurred.
4: The relentless waterboarding of Abu Zubaydah and Khalid Sheikh Mohammed
I find this distortion of reality disturbing enough, but, having
decided that this was indeed the case with Abu Zubaydah, KSM and one
other prisoner, Abdul Rahim al-Nashiri,
the CIA and its masters then decided that, in the case of Zubaydah, it
was, as Bradbury reveals in an extraordinarily telling passage,
"necessary to use the waterboard 'at least 83 times during August
2002,'" and "183 times during March 2003" in the interrogation of KSM.
These are mind-boggling figures, and, in addition, they seem to
reveal not that each horrific round of near-drowning and panic,
repeated over and over again, defused a single ticking time-bomb, but,
instead, that it became a macabre compulsion on the part of the
torturers, which led only to the countless false alarms reported by CIA
and FBI officials who spoke to David Rose for Vanity Fair last December, or, as the author Ron Suskind reported
in 2006, after Zubaydah "confessed" to all manner of supposed plots -
against shopping malls, banks, supermarkets, water systems, nuclear
plants, apartment buildings, the Brooklyn Bridge, and the Statue of
Liberty - "thousands of uniformed men and women raced in a panic to
each target ... The United States would torture a mentally disturbed man
and then leap, screaming, at every word he uttered."
One
sign that this is indeed the case comes in a disturbing footnote, in
which Bradbury (photo, left) noted, "This is not to say that the
interrogation program has worked perfectly. According to the IG Report
[a massive and unpublished internal report that was clearly critical of
much of the program], the CIA, at least initially, could not always
distinguish detainees who had information but were successfully
resisting interrogation from those who did not actually have the
information ... on at least one occasion, this may have resulted in what
might be deemed in retrospect to have been the unnecessary use of
enhanced techniques. On that occasion, although the on-scene
interrogation team judged Zubaydah to be compliant, elements within CIA
Headquarters still believed he was withholding information [passage
redacted]. At the direction of CIA headquarters, interrogators
therefore used the waterboard one more time on Zubaydah [passage
redacted]."
5: The crucial differences between SERE and CIA waterboarding
Furthermore, as another revealing footnote makes clear, the IG Report
also noted that, "in some cases the waterboard was used with far
greater frequency than initially indicated," and also that it was "used
in a different manner" than the technique described in the DoJ opinion
and used in SERE training. As the report explained, "The difference was
in the manner in which the detainees' breathing was obstructed. At the
SERE school and in the DoJ opinion, the subject's airflow is disrupted
by the firm application of a damp cloth over the air passages; the
interrogator applies a small amount of water to the cloth in a
controlled manner. By contrast, the Agency interrogator ... applied large
volumes of water to a cloth that covered the detainee's mouth and nose.
One of the psychiatrist/interrogators acknowledged that the Agency's
use of the technique is different from that used in SERE training
because it is 'for real' and is more poignant and convincing."
In addition, the IG Report noted that the OMS, the CIA's
Office of Medical Services, contended that "the experience of the SERE
psychologist/interrogators on the waterboard was probably
misrepresented at the time, as the SERE waterboard experience is so
different from the subsequent Agency usage as to make it almost
irrelevant." Chillingly, the report continued, "Consequently, according
to OMS, there was no a priori reason to believe that applying
the waterboard with the frequency and intensity with which it was used
by the psychologist/interrogators was either efficacious or medically
safe."
The OLC, as the New York Times explained in September 2007,
holds a uniquely influential position, as it "interprets all laws that
bear on the powers of the executive branch. The opinions of the head of
the office are binding, except on the rare occasions when they are
reversed by the attorney general or the president." The legal opinions
were, therefore, regarded as a "golden shield" by the administration,
although, as lawyer Peter Weiss noted after I last wrote about the Bush administration's war crimes, "it cannot be binding if it violates the constitution, or a jus cogens
prohibition of international law, e.g. torture, or, perhaps, if it was
made to order for the executive, as you demonstrate it was."
1: The "torture memos" (August 2002)
The first of the four memos (PDF), dated August 1, 2002, is a companion piece to the notorious "Torture Memo" of the same day (PDF),
leaked in the wake of the Abu Ghraib scandal, which, notoriously,
attempted to redefine torture as the infliction of physical pain
"equivalent in intensity to the pain accompanying serious physical
injury, such as organ failure, impairment of bodily function, or even
death," or the infliction of mental pain which "result[s] in
significant psychological harm of significant duration e.g. lasting for
months or even years."
These definitions were justified as legitimate attempts to interpret
what the memo's authors - OLC lawyer John Yoo and Assistant Attorney
General Jay S. Bybee - regarded as imprecision in the wording of the
prohibition against torture in the UN Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,
as implemented by Sections 2340-2340A of title 18 of the United States
Code, which defines torture as any act committed by an individual that
is "specifically intended to inflict severe physical or mental pain or
suffering ... upon another person within his custody of physical control."
In their attempts to justify the use of torture by US forces, Yoo
and Bybee not only sought to redefine "severe pain or suffering" and
"severe mental pain or suffering"; they also sought to nullify the
concept of "specific intent" by providing a defense for anyone whose
actions were undertaken "in good faith," and, in addition, noted, "Even
if an interrogation method arguably were to violate Section 2340A, the
statute would be unconstitutional if it impermissibly encroached on the
President's constitutional power to conduct a military campaign."
The
"torture memo" was disturbing enough in and of itself, of course, and
in particular because it provided so much of the justification for the
horrendous mistreatment of prisoners that followed, in Guantanamo,
Afghanistan and Iraq, but until last week the contents of the second
memo - authorizing the use of specific torture techniques for the CIA
to use on the supposed "high-value detainee" Abu Zubaydah
- had never even been glimpsed, although we knew much of what it
contained from the reports of Red Cross interviews with the 14
"high-value detainees" transferred to Guantanamo in September 2006 -
including, of course, Abu Zubaydah and Khalid Sheikh Mohammed (KSM) - which were first reported by Jane Mayer, and featured prominently in her book The Dark Side, and were then analyzed in detail by Mark Danner for the New York Review of Books, in an article published last month, and a follow-up article, accompanied by the Red Cross report itself (PDF), that was published two weeks ago.
In the 18-page memo, John Yoo and Jay Bybee approved the use of ten
techniques prohibited in the Army Field Manual, which eschews physical
violence, and, instead, lays out a series of psychological maneuvers to
secure cooperation. When applied with patience by skilled
interrogators, these techniques (which are, essentially, also followed
by several intelligence agencies including the FBI) are demonstrably
effective, and have, for years, served to demonstrate that the US is
capable of operating without resorting to the use of torture, but the
Bush administration ignored their effectiveness, introducing torture
into the military and the CIA, and sidelining those, like the FBI, who
had actually begun to achieve results with both Abu Zubaydah and some
of the Guantanamo prisoners without resorting to the use of torture.
The ten techniques - whose use is minutely micro-managed with a
chillingly cold attention to detail - include a handful of physical
tactics which, to my mind, seem mild compared to the widespread
physical violence that accompanied detention in the "War on Terror"
("attention grasp," "facial hold," and "facial slap (insult slap)"),
and a more insidious form of violence ("walling"), which involves
repeatedly hurling prisoners against a false wall. Much more disturbing
are the use of stress positions, sleep deprivation, confinement in
small boxes, waterboarding, and - straight out of George Orwell's 1984 - a proposal to prey on Zubaydah's fear of insects by placing an insect into his "confinement box."
This latter technique was, apparently, never used, but the others
all were, and the memo blithely attempted to dismiss long-standing
proof that all can be regarded as torture by being satisfied with time
limits imposed on imprisonment in the "confinement boxes," by declaring
that the use of painful stress positions (on which no time limit seems
to have been imposed) was only undertaken "to induce muscle fatigue,"
and by claiming that the well-chronicled mental collapse that can
result from sleep deprivation would, instead, only involve mild
discomfort that "will generally remit after one or two nights of
uninterrupted sleep," even though, as Yoo and Bybee also noted, "You
have orally informed us that you would not deprive Zubaydah of sleep
for more than eleven days at a time."
Justifying
the use of waterboarding - a form of controlled drowning that was known
to the honest torturers of the Spanish Inquisition as "tortura del
agua," and that, in a previous incarnation of the United States
(Vietnam), involved prosecuting US soldiers for its use - Yoo (photo,
left) and Bybee calmly approved of 20-minute sessions in which,
presumably, the 20- to 40-second procedure was repeatedly as frequently
as required, and shrugged off waterboarding's demonstrably
well-documented use as a form of torture by noting that, in the US
military schools, where it is taught in the counter-interrogation
program known as SERE (Survival, Evasion, Resistance, Escape), from
which it was reverse-engineered for the "War on Terror," it has never,
according to "experts" consulted by the administration, produced "any
adverse mental health effects."
2: The Bradbury memos (May 2005)
This assertion is, of course, monstrously untrue, as psychologist Jeffrey Kaye demonstrated in an article last week,
but the underlying premise of the August 2002 memo - that, although
torture was needed to "break" the CIA's prisoners, it was not actually
torture because it did not inflict "severe physical or mental pain or
suffering" - was spelled out much more clearly in May 2005, when the
OLC's Principal Deputy Assistant Attorney General, Steven G. Bradbury,
produced another three memos, also released last week (and available as
PDFs here, here and here), which picked up where Yoo and Bybee had left off.
Over
the course of 106 pages, as he attempted to interpret torture so that
it did not contravene the Convention Against Torture and Sections
2340-2340A of title 18 of the United States Code, Bradbury revisited
much of the ground covered by Yoo and Bybee (photo, left), but
inadvertently made it even clearer than his predecessors had that there
was a ludicrous gulf between, on the one hand, endorsing torture, and,
on the other, attempting to claim that it would not cause either severe
physical or mental harm.
As with the earlier memos, from my point of view the arguments about
the techniques not causing severe physical pain were more plausible
than those in which Bradbury attempted to argue that techniques derived
from the SERE program - which are based on teaching soldiers to resist
techniques designed to cause a complete mental collapse - do not cause
severe mental pain or suffering. The very fact that SERE psychologists
were so prominent in the CIA's torture program makes it clear that
"learned helplessness" - involving the brutal training of prisoners to
become dependent on their interrogators for every crumb of comfort in
their wretched, tortured lives - was designed not just to cause them
severe mental pain or suffering, but to completely destroy them
mentally. As Bradbury himself noted, when discussing the "conditioning
techniques" that underpin the CIA prisoners' conditions of confinement,
"they are used to 'demonstrate to the [detainee] that he has no control
over basic human needs.'"
And yet, for page after page, Bradbury concluded that "nudity,
dietary manipulation and sleep deprivation" - now revealed explicitly
as not just keeping a prisoner awake, but hanging him, naked except for
a diaper, by a chain attached to shackles around his wrists - are,
essentially, techniques that produce insignificant and transient
discomfort. We are, for example, breezily told that caloric intake
"will always be set at or above 1,000 kcal/day," and are encouraged to
compare this enforced starvation with "several commercial weight-loss
programs in the United States which involve similar or even greater
reductions in calorific intake."
In "water dousing," a new technique introduced since 2002, in which
naked prisoners are repeatedly doused with cold water, we are informed
that "maximum exposure directions have been 'set at two-thirds the time
at which, based on extensive medical literature and experience,
hypothermia could be expected to develop in healthy individuals who are
submerged in water of the same temperature,'" and when it comes to
waterboarding, Bradbury clinically confirms that it can be used 12
times a day over five days in a period of a month - a total of 60 times
for a technique that is so horrible that one application is supposed to
have even the most hardened terrorist literally gagging to tell all.
3: The ticking time-bomb scenario
The Bradbury memos are littered with fascinating snippets of
information - "Careful records are kept of each interrogation," for
example - but one of the most revealing is the establishment that,
although the array of techniques "are not used unless the CIA
reasonably believes that the detainee is a 'senior member of al-Qaeda
or [its affiliates], and the detainee has knowledge of
imminent terrorist threats against the USA or has been directly
involved in the planning of attacks," use of the waterboard is "limited
still further, requiring credible intelligence that a terrorist attack
is imminent ... substantial and credible indicators that the subject has
actionable intelligence that can prevent, disrupt or delay this attack;
and [a determination that o]ther interrogation methods have failed to
elicit the information [and that] other ... methods are unlikely to
elicit this information within the perceived time limit for preventing the attack"; in other words, the ticking time-bomb scenario, which, outside the world of Jack Bauer, has never actually occurred.
4: The relentless waterboarding of Abu Zubaydah and Khalid Sheikh Mohammed
I find this distortion of reality disturbing enough, but, having
decided that this was indeed the case with Abu Zubaydah, KSM and one
other prisoner, Abdul Rahim al-Nashiri,
the CIA and its masters then decided that, in the case of Zubaydah, it
was, as Bradbury reveals in an extraordinarily telling passage,
"necessary to use the waterboard 'at least 83 times during August
2002,'" and "183 times during March 2003" in the interrogation of KSM.
These are mind-boggling figures, and, in addition, they seem to
reveal not that each horrific round of near-drowning and panic,
repeated over and over again, defused a single ticking time-bomb, but,
instead, that it became a macabre compulsion on the part of the
torturers, which led only to the countless false alarms reported by CIA
and FBI officials who spoke to David Rose for Vanity Fair last December, or, as the author Ron Suskind reported
in 2006, after Zubaydah "confessed" to all manner of supposed plots -
against shopping malls, banks, supermarkets, water systems, nuclear
plants, apartment buildings, the Brooklyn Bridge, and the Statue of
Liberty - "thousands of uniformed men and women raced in a panic to
each target ... The United States would torture a mentally disturbed man
and then leap, screaming, at every word he uttered."
One
sign that this is indeed the case comes in a disturbing footnote, in
which Bradbury (photo, left) noted, "This is not to say that the
interrogation program has worked perfectly. According to the IG Report
[a massive and unpublished internal report that was clearly critical of
much of the program], the CIA, at least initially, could not always
distinguish detainees who had information but were successfully
resisting interrogation from those who did not actually have the
information ... on at least one occasion, this may have resulted in what
might be deemed in retrospect to have been the unnecessary use of
enhanced techniques. On that occasion, although the on-scene
interrogation team judged Zubaydah to be compliant, elements within CIA
Headquarters still believed he was withholding information [passage
redacted]. At the direction of CIA headquarters, interrogators
therefore used the waterboard one more time on Zubaydah [passage
redacted]."
5: The crucial differences between SERE and CIA waterboarding
Furthermore, as another revealing footnote makes clear, the IG Report
also noted that, "in some cases the waterboard was used with far
greater frequency than initially indicated," and also that it was "used
in a different manner" than the technique described in the DoJ opinion
and used in SERE training. As the report explained, "The difference was
in the manner in which the detainees' breathing was obstructed. At the
SERE school and in the DoJ opinion, the subject's airflow is disrupted
by the firm application of a damp cloth over the air passages; the
interrogator applies a small amount of water to the cloth in a
controlled manner. By contrast, the Agency interrogator ... applied large
volumes of water to a cloth that covered the detainee's mouth and nose.
One of the psychiatrist/interrogators acknowledged that the Agency's
use of the technique is different from that used in SERE training
because it is 'for real' and is more poignant and convincing."
In addition, the IG Report noted that the OMS, the CIA's
Office of Medical Services, contended that "the experience of the SERE
psychologist/interrogators on the waterboard was probably
misrepresented at the time, as the SERE waterboard experience is so
different from the subsequent Agency usage as to make it almost
irrelevant." Chillingly, the report continued, "Consequently, according
to OMS, there was no a priori reason to believe that applying
the waterboard with the frequency and intensity with which it was used
by the psychologist/interrogators was either efficacious or medically
safe."