In response to a 5 year old Freedom of Information Act lawsuit filed by the ACLU, today the US Department of Justice released four memos generated during the Bush years by US DOJ Office of Legal Counsel (OLC) attorneys. The OLC is a component of the Justice Department created to provide “objective” legal advice to the AG and to resolve legal disputes among federal agencies. Each of these memos was directed to the attention of John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, and provided “legal opinions” regarding a few questions he had.
Here are the memos:
http://luxmedia.vo.llnwd.net/o10/clients/aclu/olc_08012002_bybee.pdfAugust 1, 2002, Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency, Interrogation of al Qaeda Operative, by Jay S. Bybee
http://luxmedia.vo.llnwd.net/o10/clients/aclu/olc_05102005_bradbury46pg.pdfMay 10, 2005, Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, by Steven Bradbury
http://luxmedia.vo.llnwd.net/o10/clients/aclu/olc_05102005_bradbury_20pg.pdfMay 10, 2005, Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, by Steven Bradbury
http://luxmedia.vo.llnwd.net/o10/clients/aclu/olc_05302005_bradbury.pdfMay 30, 2005 Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, by Steven Bradbury
I’ve read parts of all of them and all I could stomach of the August 1, 2002 memo by the Honorable Jay S. Bybee (now a Bush appointed 9th Circuit Court of Appeals Judge). I was on the verge of retching, not so much because of the graphic content of the memos, but because of the macabre torture of the rule of law set forth in every sterile sentence of these redacted memos. They are, quite simply, red hot insanity.
The August 2002 memo was written in response to questions from Rizzo about 10 techniques used on Abu Zubaydah. In short, Bybee lays out the questions from Rizzo, describes the 10 techniques, and then decides that none of them constitutes torture. If the subject weren’t so tragic, parts of the memo would be hilarious. Lucky for them that no judge had to decide whether the memo was an accurate statement of the law. Whoops, the author is now a federal judge.
Here’s one of the questions asked by Mr. Rizzo, as framed by Bybee:
"You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular you would like to tell Zubaydah that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box. You have orally informed us that you would in fact place a harmless insect such as a caterpillar in the box with him."
Oh for Pete’s sake.
Here’s a tidbit describing the relatively innocuous (unless you are receiving it) technique (4), the “facial slap (insult slap):”
"the interrogator slaps the individual’s face with fingers slightly spread. The hand makes contact with the area directly between the tip of the individual’s chin and the bottom of the corresponding earlobe. The interrogator invades the individual’s personal space. The goal of the facial slap is not to inflict physical pain that is severe or lasting. Instead, the purpose of the facial slap is to induce shock, surprise, and/or humiliation."
In Bybee’s justification of the “facial slap” later on, he says "the slap is delivered with fingers slightly spread, which you have explained to us is designed to be less painful than a closed-hand slap. The slap is also delivered to the fleshy part of the face, further reducing any risk of physical damage or serious pain."
I think that sounds like plenty of justification to remove an open fingered facial slap delivered to the fleshy part of the face (directly between the tip of the individual’s chin and the bottom of the corresponding earlobe) from the definition of assault. Who knew the well-delivered “facial slap” was so innocuous? It could become the new high five, or “terrorist fist bump.”
And, of course, on waterboarding,
"The individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased efforts to breathe. This effort plus the cloth produces the perception of “suffocation and incipient panic,” i.e., the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. You have also orally informed us that it is likely that this procedure would not last more than 20 minutes in any one application."
Section 2340A of the United States Code makes it a criminal offense for any person outside of the United States to commit or attempt to commit torture. Section 2340(1) defines torture as: “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” 18 U.S.C. § 2340(1).
How does Bybee escape this statute through his eminent legal skills?
He starts with a big section on how, of all the people SERE trained, their experience of some of these techniques didn’t result in “adverse mental health effects,” except for that one person who started shoplifting and another who downloaded internet porn on government computers…. No joke. And the few thousand who washed out early because of adverse mental health effects…
Bybee then goes through each of the ten techniques considered in the memo, and determines that none of them results in “severe physical or mental pain or suffering.”
On waterboarding, "Although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain…. The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view inflict “severe pain or suffering. . . the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering."
So being repeatedly and actually suffocated to within an inch of your life for 20 minutes does not constitute suffering. Nor does being subjected to this over, and over, day after day, constitute suffering. Therefore it does not constitute torture. No shit, that’s what it says.
On the severe mental suffering end of the statute, while Bybee admits that “the waterboard constitutes a threat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering.” Equating the stress of waterboarding with “the stress experienced in, for example, an interrogation by state police” that surely does not cause “prolonged mental harm,” Bybee concludes that “the use of this procedure would not constitute torture within the meaning of the statute.”
Doesn’t it seem a bit arcane, bizarre, baroque, etc. that they came up with this recipe for waterboarding? Why all the mess and muss to suffocate someone repeatedly? They could use a pillow, or a noose, or duct tape and a clothes pin even. Sorry, three new techniques to write memos about.
Reading these memos was torture to me, and I may sue Bybee, Bradbury, Yoo and the rest of them for the prolonged mental harm this will probably cause me. What really makes me sick, what tortures me about this, is the massive complicity of so many members of the US government (“public servants”) in taking torture from medieval dungeons to present day practice. There weren’t just lawyers involved in this. There were the psychological professionals that signed off on it, there were the CIA personnel involved in asking the questions in the first place and then carrying out the procedures in the field, there were the members of Congress with supposed oversight over these practices that turned a blind eye, there were the complicit members of the media who “catapulted the propaganda” into public acceptance, and there were, of course, Bush, Cheney, Rumsfeld, Rice, Powell, Gonzales, Ashcroft, Yoo, Libby, and on, and on, and on.
As you know, this wonderful gift of the Bush Administration that keeps on giving has placed the Obama administration in a most difficult position, one of the most difficult I can recall an American President ever facing. Today, the DoJ announced that there will be no prosecutions of CIA personnel who carried out this activity. It remains to be seen, but this announcement could be twisted by Bush, et al. as a closing of the circle precluding any possibility of prosecuting them, or the lawyers, or anyone else for this behavior, at least in the US. As I described previously at
http://www.leftinthewest.com/showDiary.do?diaryId=2843, the argument against prosecuting the lawyers will be something like: "one problem with this is that the Obama administration seems intent on dragging its feet and not conducting an investigation into criminal conduct. So can we justifiably disbar someone for 'criminal conduct' when the conduct has not been adjudicated to be criminal yet?
UPDATE (as I actually force myself to read these memos): The CIA had to come back with more questions on waterboarding (and 11 other techniques), based on lots of experience, as evidenced by the May 10, 2005 memo authored by Bradbury:
"We understand that if the detainee makes an effort to defeat the technique (e.g., by twisting his head to the side and breathing out of the corner of his mouth), the interrogator may cup his hands around the detainee’s nose and mouth to dam the runoff, in which case it would not be possible for the detainee to breathe during the application of the water. In addition, you have informed us that the technique may be applied in a manner to defeat efforts by the detainee to hold his breath by, for example, beginning an application of water as the detainee is exhaling. Either in the normal application, or where countermeasures are used, we understand that water may enter - and may accumulate in - the detainee’s mouth and nasal cavity, preventing him from breathing. In addition, you have indicated that the detainee as a countermeasure may swallow water, possibly in significant quantities. For that reason, based on advice of medical personnel, the CIA requires that saline solution be used instead of plain water to reduce the possibility of hyponatremia (I.e., reduced concentration of sodium in the blood) if the detainee drinks the water."
Good god.
"We are informed that, based on extensive experience, the process is not physically painful, but that it usually does cause fear and panic. The waterboard has been used many thousands of times in SERE training provided to American military personnel, though in that context it is usually limited to one or two applications of no more than 40 seconds each."
What about 30 or 40 times over 20 minutes? Any physical pain from that? What about pumping saline into a detainee for days and days on end, any irritation or pain from that? How many SERE candidates were waterboarded 100 times in two weeks like Khalid Sheik Mohammed?
Pick a memo, randomly pick a page, randomly pick a paragraph, and you get the same atrocity, over and over again.
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