I’ve mostly stayed out of the debate over whether John Yoo and Jay Bybee should be disciplined by DOJ for the so-called torture memos. I’ve read some news reports, and followed the issues a little bit, but I haven’t devoted nearly the number of hours to this issue that I would need to in order to blog helpfully about them. But I did have one comment and one question on the recent reports and debate about the memos and their ramifications.
1. The Comment. I would really really like to know what happened to John Yoo’s e-mails authored when he was writing the memos. I’ve long figured that Yoo’s e-mails would be the best way to figure out what he was thinking when he wrote the memos. The e-mails could answer if he was acting in good faith or if he was just being entirely results-oriented. And yet strangely, Yoo’s e-mails from that period are missing. I personally find that very suspicious. Who deleted those e-mails, and when, and why? I would really like to know the answer to that.
2. The Question. My understanding is that the CIA authorized six techniques pursuant to the Yoo/Bybee memos. According to ABC News, they are:
1. Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes them.
2. Attention Slap: An open-handed slap to the face aimed at causing pain and triggering fear.
3. Belly Slap: A hard open-handed slap to the abdomen. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor, for more than 40 hours
5. Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees Fahrenheit (10 degrees Celsius), while being regularly doused with cold water.
6. Waterboarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Material is wrapped over the prisoner’s face and water is poured over them.
I think we all agree that the memos were wrong in concluding that waterboarding did not satisfy the legal definition of torture that is provided in 18 U.S.C. 2340 — “specifically intended to inflict” to inflict “the prolonged mental harm” caused by or resulting from:
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality
Waterboarding seems to be pretty clearly forbidden under this definition, as it’s specifically intended to inflict the prolonged mental harm resulting from the threat of imminent death. That is, the point is to so totally and completely freak out the person by what they see as their own imminent death that they’ll do anything to make it stop. While the statute is quite vague in a number of its key terms, I think the only fair reading is that waterboarding is prohibited by it.
With that long lead-up, here’s my question: Is there any consensus as to which of the other six techniques are also prohibited by this definition, and which ones are not? If there is no consensus, are there at least recognized schools of thought on the issue? I haven’t seen a lot of analysis of how these other techniques should be analzyed under the statutory language, but I would think that would be an important part of the overall debate.
N.B.: I’ll open comments for a bit because I would really like to know the answer to my question, but if things get out of control I’ll just close them up.
AnonCorrespondent says:
I’m no legal scholar, but Long Time Standing seems specifically intended to inflict prolonged mental harm resulting from the intentional infliction of severe physical pain or suffering. It is well-documented that Long Time Standing causes severe physical pain and suffering, with the ensuing prolonged mental harm that accompanies that, and that’s why it is a method of choice for coercive interrogation.
March 1, 2010, 3:07 amObserver says:
There may be a consensus that certain forms of waterboarding clearly satisfy the statutory definition (including as practiced by the Japanese during World War II). I don’t think Yoo would quibble with this. But there is certainly no consensus that waterboarding necessarily satisfies the definition in all instances; as practiced by the CIA, the “prolonged” component of the statute would not have been met.
March 1, 2010, 3:11 amcboldt says:
Your posts seems to have an internal conflict …
vs.
Also, the words “the prolonged mental harm” is a legal term of art in this statute, or appears to be. In any event, there is substantial disagreement over whether or not waterboarding per se constitutes “torture” under the definition. At least the element of specific intent is questionable, and also the “threat of death” isn’t a given. Instead of torture, see “Cruel and inhuman treatment.” I recall all of these statutes being rewriting, with retroactive effect, in the scope of legislating the Detainee Treatment Act, or Military Commissions Act.
I haven’t waded into the debate either, and am likewise suspicious about the lost e-mails.
March 1, 2010, 3:33 amcboldt says:
Never mind pn that “internal conflict,” I see what you are saying in the first instance (what the memos say), vs your conclusion that the memo is wrong as a matter of law on that point.
March 1, 2010, 3:34 amOrin Kerr says:
Observer,
KSM reportedly was waterboarded 183 times in one month. If you don’t think that being waterboarded 183 times in one month was intended to cause “prolonged mental harm”, can you give us some idea of how many times or for how long someone would need to be waterboarded for the procedure to be intended to cause “prolonged mental harm,” in your view?
March 1, 2010, 3:34 amOrenWithAnE says:
Snarky answer (sorry Orin) — call the whole thing void for vagueness and require Congress to write a statute with real guidelines for interpreting its key terms. This one is linguistic putty, everyone seems to shape into whatever they think it ought to be. It’s not for the Executive but for Congress to write the rules governing captures.
[ I should add that I agree with OK that waterboarding is way out. That doesn't give much guidance as to how to interpret the gray area. A good question to ask is "What do you think the most unpleasant/painful/scary thing that falls just short of the statute is?" ]
March 1, 2010, 3:57 amAndrew says:
I agree that waterboarding could well fall within the 16 USC 2340 definition, but not necessarily. If a person is assured that he will not die, and knows full well that he will not die, then perhaps there is not “the threat of imminent death.”
Andy McCarthy has written the following:
I’m not endorsing waterboarding as an interrogation tool, but merely pointing out that reasonable minds can differ about whether it necessarily involves an imminent threat of death. Certainly it causes a sensation akin to drowning, but a sensation is not the same thing as a threat.
March 1, 2010, 4:05 amRicardo says:
I think we got to the bottom of this on a previous thread. First, the “imminent threat of death” element is, in fact, a given according to Yoo and Bybee. At least, that’s what they said in the torture memo. If suffocating someone with a wet cloth or plastic over the nose and mouth is not a threat of death, nothing is short of death itself. If you are waterboarding someone and that person is not in fear of his life, you are not doing it properly which also handles the intent issue.
As for “prolonged mental harm,” I’m not a lawyer so I don’t know the precise purpose of that language. One possibility is that the same phrase was used in the earlier Torture Victims Protection Act that made extraterritorial torture a tort. Maybe there is something about tort law and “prolonged” harm and this language got carried over into the criminal statute. But that’s speculation. More persuasive is a paper written about the subject (cheers to Jukeboxgrad on this) that argues that “prolonged mental harm” is assumed by the language of the statute. It is not a separate element to be proven. Courts involved in claims under the TVPA have apparently treated “prolonged mental harm” as something to be assumed rather than proven. They have not required a showing, contra Bybee/Yoo, of mental harm lasting over a period of months or years.
March 1, 2010, 4:15 amAnonCorrespondent says:
I don’t know how someone being subjected to waterboarding could “know full well that he will not die”. I would not trust any assurance from an interrogator. (For one thing, they could make mistakes and kill someone. For another thing, they could be lying or stretching the truth.) If I were waterboarded 183 times in one month, you can be certain I would believe myself to be under “the threat of imminent death”.
March 1, 2010, 4:20 amAndrew says:
Ricardo, I don’t know what Yoo and Bybee said in their memo (having never read it), but citing that memo as legal authority seems ill-advised given all the official criticism it has received. And AnonCorrespondent, are you saying that the trainees were tortured? I doubt very much that they were. Maybe KSM and the other detainees were, but not the trainees.
March 1, 2010, 4:21 amjosh bornstein says:
Since no one seems to be answering the OP’s direct question…
March 1, 2010, 4:22 am6 is, as you said, pretty much a given.
4, I’d think, also rises to the level of torture (from the little I’ve read about it).
5. No sure. Might depend on the length of time it’s done. (Even if it’s not torture, it sounds pretty horrific to me. . . . Which might be the point, I grant.)
1-3, not torture, IMO.
Ricardo says:
There is a difference between assurances and actions. For instance, Google “Hitchens waterboarding” to see a demonstration of waterboarding. In this demonstration, Christopher Hitchens was handed weights and was additionally given a codeword to say if he wanted the waterboarding to stop at any point. Sure enough, when he dropped the weights, the waterboarding session came to an abrupt end. This demonstration was clearly not done with intent to make Hitchens feel an imminent threat of death, because he had the power to end it at any time.
On the other hand, in real-world waterboarding, the victim has no say in when his treatment comes to an end. That’s because the intent is, in fact, to induce fear and terror of an imminent death if he does not start talking immediately. That is a huge difference between waterboarding done for demonstration or training purposes and waterboarding done to extract information from someone. The issue is control: lack of control over one’s basic breathing function inevitably leads to imminent fear of death.
March 1, 2010, 4:24 amRicardo says:
I didn’t cite it as “legal authority.” I said the plain meaning of “imminent threat of death” means waterboarding does involve, in fact, an “imminent threat of death.” I additionally made the legal point that Yoo already stipulated that waterboarding involves an imminent threat of death so therefore he cannot later say otherwise to justify his memo. I’d urge you to read the memo and the other relevant facts of this controversy.
March 1, 2010, 4:30 amAnonCorrespondent says:
No, I never said that. There’s a difference between a hostile interrogator and a faux-interrogator in a training exercise. I would never believe assurances from a hostile interrogator, but I might from someone playing the role of interrogator in a training exercise.
Ricardo’s response puts it better than I can.
As for Orin’s original question, Josh Bornstein’s answer seems pretty reasonable to me. I’d argue more strongly that 4 (Long Time Standing) is torture by the particular statute Orin listed, based on my readings about torture techniques used by third-world countries around the world.
March 1, 2010, 4:34 amcboldt says:
– More persuasive is [Kate Riggs, Prolonged Mental Harm: The Torturous Reasoning Behind a New Standard for Psychological Abuse, Harvard Human Rights Journal] that argues that “prolonged mental harm” is assumed by the language of the statute. –
March 1, 2010, 4:38 amThe net effect of the approach proposed in that paper is the elimination (or better, redirection) of the “specific intent” element.
The existence of persistent, voluminous and heated debate on the “waterboarding=torture under 18 USC 2340″ tells me that “we all agree it is” isn’t true.
gwinje says:
The two slaps and a grab may not be torture, but, cold and standing can apparently be homicide, so. . .
March 1, 2010, 4:38 amAnon Y. Mous says:
What in the world would make you say something so obviously false? Waterboarding is by no means a settled issue. To this day, Dick Cheney, to name one prominant example, continues to defend the use of the technique.
That’s circular. First off, the intent was never to cause “prolonged mental harm”. It wasn’t the intent with the first instance, and it still wasn’t the intent after the 183rd instance. Furthermore, it has not been established that KSM did in fact suffer “prolonged mental harm”.
What is meant by “prolonged mental harm”? In context, it can only mean long-lasting. That is, something that continues to be felt months and years after the events in question.
It is clear that they were looking for methods that could be used that while immediately intimidating, did not have long lasting effects. As a matter of fact, the more you waterboard someone, the less likely they are to believe that it will result in their death. The first time, having never experienced it, no doubt it is very frightening. But, as the method is repeated time and again, day after day, experience will tell you that you are in for a very uncomfortable experience, but one you will survive, with no long lasting effects.
March 1, 2010, 4:46 amAndrew says:
Well, consider KSM. He was allegedly waterboarded 183 times in one month, as Orin indicated. I would guess that after a few such experiences, he learned that they were not fatal. So, perhaps there was no “threat of imminent death” after he learned that.
I’ve now looked at the Bybee Memo of August 1, 2002. It says: “Although the procedure will be monitored by personnel with medical training and extensive SERE school experience with this procedure who will ensure the subject’s mental and physical safety, the subject is not aware of any of these precautions.” If the subject were aware of these precautions, then there would be a reasonable argument that there is no “threat of imminent death.”
March 1, 2010, 5:00 amrequired says:
There also seems to be an omission of “prolonged” in the consideration of water boarding as prolonged metal harm. Unless prolonged is meaningless verbiage and the statute was intended to call forms of mental harm as torture there has to be a demonstration that imminent threat of death results in prolonged mental harm. If the inclusion of the word “prolonged” in the statute has meaning, then actions which are intended to only temporarily disrupt the mental state are not ruled out by the statute, which could include actions intended to “so totally and completely freak out the person by what they see as their own imminent death that they’ll do anything to make it stop” as long as that state was only temporary.
As for the missing e-mails, well they probably weren’t deleted but were mis-filed. During 2002 the White House (and some other offices working closely with the White House) upgraded the e-mail system and the installation was a hash job (but good enough for government work:)). From 2002-2004 e-mails are hit and miss, filed in odd places, possibly overwriten directories (although it seems that this is become less likely than originally thought), filed under strange names and so on. It’s probably not that the e-mails were deleted, its just that no one can find them, and not just anyone can look at them either since any given random e-mail may contain classified information. You can consider it incompetence or deliberate but it wasn’t just the Yoo memos that were lost.
March 1, 2010, 5:08 amcboldt says:
– If the subject were aware of these precautions, then there would be a reasonable argument that there is no “threat of imminent death.” –
March 1, 2010, 5:10 amI believe “threat of imminent death” measures words/actions by the person charged with torture, and not something in the victim’s mind. It is the making of a threat of death that is forbidden, not the apprehension of death by the victim. Sometimes those two things merge (e.g., “I’ll kill you if you don’t talk” accompanied with pointing a pistol being the threat, likely accompanied by apprehension on the part of the victim); other times the two things diverge, see the Hitchens waterboarding.
David Schwartz says:
I’ve read reports of what was supposed to be an “attention grab” (not by US interrogators) causing concussions. I would argue that every single one of these techniques work, when/if they do work, by making the victim fear that he will be severely harmed or made to suffer. In fact, under many realistic circumstances, anyone detained and interrogated will reasonably believe that they are being threatened with severe harm unless they are believably reassured that no such harm will come to them.
Even the attention slap works only because the victim fears that it will escalate to severe harm or suffering. It is claimed this works by inducing fear — fear of what?
Frankly, I cannot believe that the United States of America is engaging in this type of hair splitting.
March 1, 2010, 6:36 amShag from Brookline says:
As to the missing Email messages, I’ve been practicing law since 1954 and got hooked on the Internet only when I went into semi-retirement in 1998. With respect to Email messages that I send or receive in connection with a legal matter I am handling, I routinely make hard copies for a file. Granted, this may result in more trees being chopped down. But there’s nothing like having a physical record for a practicing attorney just in case questions surface at a later date, including possible malpractice claims. Yoo is a lot younger and surely has been hooked on the Internet going back to law school. I would assume that Yoo would have printed out Email messages for a hard copy file during his tenure at OLC. I wonder if he has been asked whether he has done so. Surely the subject of torture that he was addressing was recognized by him to be potentially problematic. Wouldn’t he want to preserve a hard copy paper trail to defend his actions at OLC, especially after the issue surfaced and he left OLC? Assuming he did print out hard copy for his own file, it is possible that at some point he got rid of them. But consider Pres. Nixon and the Oval Office tapes that he could have but did not destroy and his motivations for not doing so. This issue will not go away. Perhaps other parties to the Yoo Emails may produce them over time.
March 1, 2010, 6:55 amAnderson says:
Prof. Kerr,
Agreed that (1-3), *as written*, are probably not torture under the Torture Act, though they may be abusive. The problem is, as noted already in comments, “torture creep” — when someone doesn’t break under a slap, a harder slap seems like a good idea. Cf. Volokh, E., on slippery slopes. I believe the Israeli courts have addressed this issue.
Long-time standing (stoika, the NKVD or its victims called it — google same) becomes excruciating faster than one would guess. CIA’s research in the 1950s was clear on this as torture, as were the NKVD’s victims. It’s also tied to sleep deprivation, another classic method of “no marks” torture, since chaining the victim upright prevents him from falling asleep. Even comic strips take it for granted that prisoners in dungeons are chained to the wall, hands over their heads. There was a reason for doing that.
The cold cell, I’ve seen less on, but obviously it flirts with hypothermia the way that waterboarding flirts with drowning. The Nazis “experimented” with subjecting Jews to cold, supposedly to study the effects of North Sea ditching on German pilots, but it’s safe to say the sadism outweighed the science. This one is clearly abusive, but whether it’s “severe physical pain” is a matter of details; see also “torture creep” above. I would argue yes; at the very least, I would not want my freedom over the next 20 years depending on a jury’s finding “no.”
March 1, 2010, 7:22 amAnderson says:
Oh, and on the missing e-mails, there would seem to be only two possibilities:
(1) Yoo had help, probably technical help, ordered by someone high up, in wiping e-mails off multiple servers. This would almost certainly have been done either
(a) to conceal evidence of a crime; or
(b) to conceal the embarrassingly direct involvement of someone such as Cheney or Addington; OR
(2) The e-mails aren’t really completely wiped beyond forensic ability to retrieve, but DOJ really hasn’t been all that eager to retrieve them, and probably never will.
Personally, I incline to (2) — (1) would’ve involved enough people that one might blab.
March 1, 2010, 7:25 amStephen Lathrop says:
Seems like there is no longer any refuge for the pro-waterboarding party except the one (to them) contradiction that American armed forces waterboard each other for training, so how could it be torture? The answer of course lies in the fact that the point of the training is to teach the subject that he will survive. As noted by others, that’s different than real interrogation waterboarding where the point is to convince the subject he will die.
Note as well that an American serviceman believing he can withhold information and yet survive waterboarding fulfills his mission—the protection of confidential military information. Nothing more thoroughly fulfills that mission than if the serviceman dies heroically while being waterboarded. That remains true even if his heroism is the result of a delusion inculcated by training.
As for the other questions, I have no idea what the legal distinctions might be. Pretty sure that being held naked at 50 degrees while being doused with cold water will induce hypothermia and kill you eventually. Long time standing seems like it would threaten permanent loss of function.
My standard for deciding what should be done in interrogation is just the practical paranoid standard: once we decide interrogation techniques, whatever they are, aren’t harmful, what keeps them out of my local police precinct? On that basis I rule out all the listed procedures.
March 1, 2010, 7:28 amBored 4L says:
It seems that the focus is more on threat of death than severe physical pain. It seems to me that 4-6 are completely covered by that portion, and depending on the severity, 1-3 may be as well.
March 1, 2010, 7:34 amAnderson says:
Certainly it (waterbording) causes a sensation akin to drowning, but a sensation is not the same thing as a threat
If I were waterboarded by al-Qaeda, or the North Koreans, I would have no great comfort that I was not *really* being drowned, just having that sensation created.
The armchair waterboarders spend little time imagining what it feels like being unable to breathe. The higher brain centers, the parts that can distinguish between “sensation” and “threat,” get shouted down by the part that’s screaming OH NO I CAN’T BREATHE HELP HELP HELP. That’s why torturers use waterboarding. If it didn’t do that, they would have to find some other means of inflicting suffering.
March 1, 2010, 7:36 amEliot Bernstein says:
Here’s some morons trying to endure waterboarding
@
http://blogs.suntimes.com/sportsprose/2009/05/mancow_gets_waterboarded.html
and
http://www.huffingtonpost.com/2009/04/20/playboy-journo-bets-he-ca_n_189280.html
and
http://www.youtube.com/watch?v=4LPubUCJv58
These guys withstood seconds, imagine days on end with a rubber house with people beating you, no psych damage, not torture = your a nazi in disguise
March 1, 2010, 7:40 amColin says:
Honestly, is the answer to the first difficult to figure out?
Unless you’re willing to undergo sci-fi-movie levels of willful suspension of disbelief, it’s obvious who deleted the emails and why, broadly speaking. Yoo and his associates there, and to cover their tracks.
Any other answer is simply laughably unlikely.
March 1, 2010, 7:44 amJack G says:
Orin certainly seems to me to have ideosyncratic definitions of “every person agrees” and “prolonged”.
I am curious to know if Orin has any legal support for his apparent idea that 183 waterboarding sessions over a month constitutes “prolonged”. Any cases or legal opinions to back this up? Especially given that each session is measued in seconds. If it is the accumulation of time that is the issue, does Orin think one session is not torture? What if there were 183 instances of another technique?
I am just puzzled at orin’s certitude on the matter. I am personally a lot more tentative in drawing legal conclusions with such adearth or leegal guidance.
March 1, 2010, 7:54 amFrank says:
I think the real question is this: to what degree of certainty do we believe that the subject has real and useful knowledge of plans to kill Americans?
If the answer meets an acceptable standard, NONE of the listed techniques are beyond the pall. To gain the details of a planned attack, they are comparatively mild.
March 1, 2010, 8:08 am2 cents says:
Depending on how administered, I think the following could be charged under 18 U.S.C. 2340 in good faith:
2. Attention Slap
3. Belly Slap
5. Cold Cell
I think being forced to stand for 40 hours as described, would certainly qualify. (4. Long Time Standing)
What I don’t understand, though, is why we let Yoo/Bybee define the debate. Seems to me that because the Supreme Court determined that Common Article 3 of the Geneva Conventions apply to the conflict with Al Qaeda (See Hamdan), the question we should be asking is why would not a prosecution for violation of Laws and Customs of War be appropriate? (Retrospectively, while I still think the conduct of the government officials who engaged in these enhanced interrogations is chargeable, I suspect that one basis for not doing so is some sort of mistake of law defense being taken into account by DOJ officials as reason to exercise prosecutorial discretion). Looking forward, with the current Executive Orders in place, I think that no such defense would be available (except to the extent that there are secret orders in place that continue to excuse the conduct).
One other thought: I think you also have to look at the aggregate conduct as possibly meeting the legal definition of torture in 18 U.S.C. 2340. That is, perhaps an attention slap may not by itself meet the definition. But, as part of a course of continuing conduct and/or in conjunction with other enumerated techniques, would together meet the definition.
March 1, 2010, 8:10 amAnderson says:
Frank, the real question is, whether torture is the most effective way of gaining that information?
It’s not. Torture is very good at getting confessions (truthful or not). Kinda sucks for other purposes. Some people will give up good info under torture, but they would also have done so under interrogation.
There’s a reason why police and the FBI don’t use torture in criminal investigations, and it’s not the Warren Court. It’s that torture doesn’t work very well. Professional interrogators despise torture as the first resort of amateurs.
March 1, 2010, 8:12 amHoward Gilbert says:
As Yoo notes in his op-ed yesterday, “The Justice Department’s e-mail system is unclassified and could not be used to discuss interrogation methods, which were classified at the highest levels of secrecy.” So if any e-mail is missing, the missing messages do not contain anything on this topic.
As to how or why they disappeared, ask the IT department. Mail to be systematically retained has to be logged at the mail transfer agent. All the mail for the entire system would be stored, typically on a CD or DVD to have a permanent record with a second copy for off site storage. Anyway, to get rid of retained records you need someone in IT to do it physically because even the AG could not sit down at a computer and enter some command to accomplish the task. On the other hand, a case of cheap DVDs from the lowest price bidder (that government rules require gets the contract) with a defective coating that lets the reflecting surface oxidize can do the job nicely. All this is speculation until someone explains what really went wrong. Just before you get any conspiracy theory going, remember that among all these lost offers to sell cheap Viagra or cut you in to millions in Nigerian bank transfers, the one subject not discussed in the lost e-mail was interrogation techniques because the system was not qualified to contain such material.
March 1, 2010, 8:12 ambyomtov says:
Numbers 4-6 are clearcut. Numbers 1-3 as described depend on severity and repetition, but I’m guessing they were pretty severe in practice.
Let me join with those expressing incredulity at the statement that:
I think we all agree that the memos were wrong in concluding that waterboarding did not satisfy the legal definition of torture that is provided in 18 U.S.C. 2340
I think the many threads on this subject refute the notion that there is agreement on this point.
March 1, 2010, 8:25 amObserver says:
Professor Kerr,
“KSM reportedly was waterboarded 183 times in one month. If you don’t think that being waterboarded 183 times in one month was intended to cause ‘prolonged mental harm’, can you give us some idea of how many times or for how long someone would need to be waterboarded for the procedure to be intended to cause ‘prolonged mental harm,’ in your view?”
The fact that KSM was waterboarded 183 is itself indicative that the CIA sought not to inflict “prolonged” mental harm. This is why they had to proceed in so many short increments. Otherwise, they could just have waterboarded him a few times, for prolonged periods each time. Causing “prolonged” mental harm is about how long the procedure lasts each time, not about how many times you do it, and it should be fairly uncontroversial that a procedure that lasts less than a minute each time is not “prolonged.”
March 1, 2010, 8:25 amAnderson says:
As Yoo notes in his op-ed yesterday, “The Justice Department’s e-mail system is unclassified and could not be used to discuss interrogation methods, which were classified at the highest levels of secrecy.” So if any e-mail is missing, the missing messages do not contain anything on this topic.
Of course! Why not take Mr. Yoo at his word? Case closed!
… Re: Frank’s “whatever it takes,” people should be suspicious of anything that sounds like a Nazi slogan. Hitler came in on a “program” of promising to take the gloves off, knock heads together, and thwart the Communist menace, without any soft liberal cossetting of the state’s enemies, the “November Criminals.”
The notion that America just isn’t *tough* enough betrays, I think, a fundamental doubt as to the viability of the American state and the rule of law. I think Cheney and Addington share(d) this doubt, which is why their first impulse after 9/11 was to “take the gloves off” and go to “the dark side.” They confused being brutish with being serious.
March 1, 2010, 8:26 amWidmerpool says:
Both Bush and Gonzalez did not have email accounts–and this was well known (probably other administration figures did not have them either). The message: email is radioactive and best to be avoided. There are no Yoo emails to discover because they were never written. Thanks to FOIA and independent investigations and Nixon and who knows what else, top government officials have gotten the message–behave like mafia figures and leave no written record. And does anyone think Obama’s folks behave differently? This is not a partisan issue or one limited to a particular administration. This is a systemic failure of government which encourages furtive behavior.
So, no, Anderson, we don’t have to take Yoo’s word for it–just a dollop of common sense.
March 1, 2010, 8:42 amShelbyC says:
It seems to me that waterboarding is torture under pretty much any definition except one that requires a specific intent to cause prolonged mental harm. I haven’t parsed the language exactly, but isn’t there some prong that includes severe physical pain as well, without prolonged mental harm? If not, I’m going to have to reconsider my opinion.
And I agree with observer that the fact that they did in 183 times in a month doesn’t indicate such intent. I’m sure they asked him nicely for information 183 times in a month too.
4 & 5 seem to come closer to meeting that definition, assuming that “prolonged” means over a term of a week or so.
March 1, 2010, 8:54 ammattski says:
Common sense, the cure for actual forensic investigation.
March 1, 2010, 8:58 amegd says:
You can believe that he’s lying, which requires you to believe that:
- Yoo conspired with officials at the highest levels to deliberately engineer legal conclusions to support torture;
- Yoo conspired with layers of IT personnel to permanently delete records of his actions;
- Yoo further conspired to hide all of his contacts with CIA personnel;
- Yoo knew that he was advocating for torture; and
- Yoo did all of this over an unsecure email system.
This is what you really believe? Really?
Also, to answer the opening question of O.K., if the “prolonged mental harm” element is assumed (as Ricardo’s link advocates), or has a minimal standard of proof (since I assume there’s no evidence that waterboarding leads to prolonged mental harm), then all of the above are torture under:
“the intentional infliction or threatened infliction of severe physical pain or suffering”
I think it’s also pretty obvious that the police regularly engage in torture as well, including such tactics as threatening a harsher sentence to a defendant, threatening to send a person to a federal penitentiary, using bright lights during interrogation, and engaging in prolonged interrogations of suspects.
Clearly, we need to start rounding up the various police forces and put them in prison for violating the anti-torture law.
March 1, 2010, 8:59 amepeeist says:
#4 (standing includes sleep deprivation) would seem to meet the definitions in (B) and, depending upon the definition of “severe”, (A) and (D) also.
#5 (from what I’ve read the cold disrupts thinking patterns) would again seem to meet the definitions in (b) and, depending upon the definition of “severe’, (A) and (D) also.
#6 I agree with OK it’s torture. I note also, since, as I recall, at least one person HAS died during U.S. waterboarding (heart attack?), it is NOT safe.
#1/2/3, I can’t see how these would be torture under the statute under most conditions, not “severe” pain or anything like that (I’m extrapolating from my own experience of sports etc. and blows to those areas, not what I’d call “severe” pain by any means).
Given the number of false convictions and false confessions (even when later DNA etc. evidence proves the person innocent) that occur even within the regular U.S. justice system with its (supposed) protections, to expect that torture (or “torture” if you disagree it’s torture) will produce reliable confessions strikes me as a foolish hope or wilful blindness. I’m pretty sure that if you had me standing for 40 hours (not sleeping, in addition to the standing) or kept in a cold cell doused with icy water, let alone waterboarded me, I’d start confessing to stuff I’d never done.
March 1, 2010, 9:08 amShelbyC says:
If the torture statute really requires specific intent to inflict prolonged mental harm, Congress needs to change it.
March 1, 2010, 9:13 amEric Rasmusen says:
Excellent comment! The first paragraph must be the answer, but let me continue the question. IT departments commonly back up ALL material, not just that to be systematically retained, every night. Do they retain those backups? Such backups would include all the email that gets deleted– even the email taht gets carefully deleted, rather than jsut using the “delete” command. It is very hard to fool with just a backup, especially in a way that can’t be detected, tho maybe an expert could do it.
March 1, 2010, 9:24 amAnderson says:
This is what you really believe? Really?
Actually, I already said what I “really believe,” which is that the e-mails are recoverable with some effort, but DOJ has not cared to expend that effort.
Re: insecure e-mail systems, James Comey likes to give a speech in which he discusses what a gold mine e-mail is for prosecutors: people say the most amazingly indiscreet things, because they have the illusion of privacy. He compares it to how people will behave sitting in traffic, as if they weren’t visible from other cars.
Recall also that Yoo was writing memos he knew would be classified, and had at least some reason to think would stay that way.
… Widmerpool, common sense only gets you so far. Why don’t you supplement it with Prof. Kerr’s link, above:
[OPR] discovered that many e-mail messages to and from John C. Yoo, who wrote the bulk of the legal opinions for the Justice Department’s Office of Legal Counsel, were missing. The office disclosed the missing messages in a footnote to its final report, which was released last week.
“We were told that most of Yoo’s e-mail records had been deleted and were not recoverable,” officials from the Office of Professional Responsibility said in the footnote.
Also deleted were a month’s worth of e-mail files from the summer of 2002 for Patrick Philbin, another Justice Department lawyer who worked on the interrogation opinions. Those missing e-mail messages came during a period when two of the critical interrogation memos were being prepared.
The fact of the deletions does not seem to be genuinely disputed at this point. What’s in question are the thoroughness of the deletions and the motive.
March 1, 2010, 9:31 amDavid Schwartz says:
Is that really your argument? So watching your son murdered can’t cause “prolonged mental harm” so long as the actual viewing only take a minute or so?
And the other side of this argument is stunning in its foolishness. No number of sessions, no matter how many and no matter how rapid, can constitute “prolonged” so long as no one session is long? Really?
March 1, 2010, 9:38 amMark Tillar says:
Enjoy Volokh’s opinions and insights, but I am so thankful for John Yoo and Jay Bybee service to this country. Professor’s can debate their legal analysis forever, but waterboarding saved American Lives, and from what I read, caused no physical injuries to the THREE TERRORIST who were subjected to it and gave up valuable information.
“Waterboarding seems to be pretty clearly forbidden under this definition, as it’s specifically intended to inflict the prolonged mental harm resulting from the threat of imminent death. That is, the point is to so totally and completely freak out the person by what they see as their own imminent death that they’ll do anything to make it stop.” Professor, it seems pretty clear to me that you are pushing your personal agenda and opinion as the facts do not support your assertions: ‘prolonged mental harm’ – where’s your proof that KSM or the other 2 suffered mental harm?
March 1, 2010, 9:40 ambailey says:
Was it prolonged? 183 times is a trifle misleading to the extent I have read that this mean 183 pours of water, not 183 different sessions.
March 1, 2010, 9:45 amJRC says:
I think this might be a little misleading. There were 183 pours each lasting a few seconds, split up over five sessions. http://www.foxnews.com/politics/2009/04/28/despite-reports-khalid-sheikh-mohammed-waterboarded-times/
Also, I don’t think the intent was to cause prolonged mental harm, but rather to cause brief immediate panic.
“That is, the point is to so totally and completely freak out the person by what they see as their own imminent death that they’ll do anything to make it stop.”
I’m not sure that’s the point. It may give the feeling that they are drowning but it is a different matter to say they are seeing their imminent death. For instance, I don’t think I’d last a second, even knowing that it would not cause death. I don’t think causing actual fear of death is the point here.
March 1, 2010, 9:51 amAndy Bolen says:
Bailey’s correct to note this. The NYT report saying “183 times” is misleading. It was 183 pours of approximately 2 seconds each over a month. (This is why they weren’t in violation of their own guidelines.)
Edit: I see JRC beat me to the punch.
Also, I tend to agree with JRC’s distinction between intent to cause panic or even fear of immanent death, and intent to cause prolonged harm.
March 1, 2010, 9:52 amSGD says:
I too don’t think the specific intent to cause prolonged mental harm is a given. Is there any reason to think the Yoo and the interrogators knew that waterboarding caused some kind of extended mental disorder? I doubt it.
Does waterboarding actually cause “prolonged mental harm?” Let’s see the evidence. And let’s see the evidence that Yoo and company knew about that evidence.
It think it is pretty clear that the evidence available to them was that waterboarding clearly did not cause prolonged mental harm. Thousands of US soldiers/sailors/airpersons/etc have been waterboarded as part of their training. If it caused such prolonged mental harm the practice would have been discontinued.
Let’s see the evidence, not just theoretical musings from lawyers.
March 1, 2010, 9:52 amAnderson says:
… Re: Prof. Kerr and “mental harm,” I myself think that waterboarding more clearly inflicts “severe physical suffering.” The prolonged sensation of drowning is severe, it’s physical, and it’s suffering.
March 1, 2010, 9:59 amTay says:
I understand they are trying to get vital information, but when does the end result justify a lack of humanity?
March 1, 2010, 9:59 amPersonFromPorlock says:
This whole thing is a good illustration of my often-made point that much of the law’s complexity comes from the government trying to have it both ways. Is there any doubt that any of the techniques above would be considered torture if the FBI applied them to, say, a kidnapping suspect?
The fact is that we find torture useful and we want to use it, we just don’t want to admit we use it. I don’t necessarily disapprove of using torture on suspected terrorists, but I do disapprove of using weasel-words to describe it.
March 1, 2010, 10:00 amAnderson says:
It was 183 pours of approximately 2 seconds each over a month.
Source, please?
March 1, 2010, 10:01 amPintler says:
1, 2, and maybe 3 don’t seem to meet the statutory test, at least for an isolated case. Using them in a 36 hour marathon would meet the test. 4, 5, and 6 sure seem to meet the test to me.
My personal analysis is to imagine one of my nieces or nephews being captured by the enemy and undergoing interrogation. If someone grabbed them by the shirt front, I would be displeased. If someone used 3, 4 or 5 on them I would be outraged.
For #3: what does ‘force’ mean? What do you do if the guy just sits down?
I don’t know how many accounts of US POWs in the Korean and Vietnam wars you have read. If you have not, I encourage you to read a dozen or three of their accounts.
March 1, 2010, 10:01 amReading about these things happening to your guys may put things in a different light.
Anton says:
Actually Orin, no, we can’t all agree on that. Nor are the things you see “pretty clearly” quite so clear to others.
This seems to be another partisan hack post, disguised as inquiry and debate.
March 1, 2010, 10:06 amStormy Dragon says:
A question for the people who don’t think the cold room qualifies as torture: Aleksandr Solzhenitsyn described this as one of the favorite punishment techniques in the Soviet gulags and repeatedly refers to the act as torture. Do you feel he was unjustly slandering the Soviet government with these accusations?
March 1, 2010, 10:16 amJoseph Slater says:
I don’t share a chunk of Orin K.’s politics. But I will say that when somebody refers to Orin K.’s discussion of an issue as a “partisan hack post,” that says much more about the accuser than it does about Orin.
March 1, 2010, 10:16 amyankee says:
Orin, I think you are in error in relying exclusively on the “imminent threat of death” criterion for waterboarding. Waterboarding causes severe physical suffering: the subject is being suffocated, is forced to inhale water, and will die of asphyxiation in short order if the technique is not stopped. The subject’s reflex response is exactly the same as in “real” drowning, because the subject is in fact drowning. If that does constitute severe physical suffering then nothing does.
March 1, 2010, 10:21 amAndy Bolen says:
That’s not helpful.
March 1, 2010, 10:30 amAndrew says:
As someone who’s just been characterized as an “armchair waterboarder”, I’d just like to point out that I’ve not said one word about whether the waterboarding of KSM or the two other detainees amounted to “torture” within the statutory definition. I merely said that I can envision other situations where that sort of question would be a close call, i.e. when the subject knows full well that he is not imminently going to die. It should be obvious that my comments in this thread don’t mean that I like torture, that I support waterboarding, or that I think the statute was well-written. So, I really don’t think there’s any need for epithets like “armchair waterboarder.”
March 1, 2010, 10:31 amAndy Bolen says:
JRC gave a source for “a few seconds”, I’m happy to concede that if you think “a few” differs from “approximately two.”
March 1, 2010, 10:35 amorca says:
Don’t blame the United States.
It’s only the party that’s out of power that’s engaging in a laughable “defense” of torture…and it’s one of the reasons they’re out of power.
March 1, 2010, 10:36 amOrin Kerr says:
Anton:
Joseph Slater:
Assuming “Anton” is the old AntonK, then I believe his view is that I am secretly a left-wing Democrat who only pretends to be a Republican, presumably as part of the elaborate “disguise” mentioned.
March 1, 2010, 10:43 amMark Field says:
Anderson, 2 cents, pintler and others (including the first paragraph of personfromporlock) have already said what I would say, so I’ll just summarize: 4,5,6 are definitely torture. 1-3 aren’t if they’re isolated incidents, but could become torture if used repeatedly. The entirety of treatment must also be assessed; combining the various techniques could very well amount to torture.
As for whether we all agree about waterboarding, you might want to follow Jim Comey’s famous “no good lawyer” comment and modify your wording so that all reasonable people agree.
March 1, 2010, 10:43 amStephen Lathrop says:
Here is a first person comment for those of you who have perhaps seen videos of various volunteers being waterboarded. Decades ago I worked for a time as a lifeguard, and have been present for two instances where a person rendered unconscious by water inhalation was successfully revived. (Thankfully, no actual drownings.) In each case the victim was FAR more distressed, obviously physically, and apparently psychologically, than the volunteer victims of waterboarding seem to be afterward. Where in these demos is the trembling, constant coughing, incoherent speech that near-drowning victims seem to show?
I don’t take this to be an exoneration for waterboarding. I take this as proof that the waterboarding demonstrations I have seen on the web don’t go nearly as far as a determined interrogator could take this brutal process.
March 1, 2010, 10:54 amMatt says:
Are you saying that the CIA tortured under the statute, or that “waterboarding” is impermissible under the statute. Because they’re not necessarily the same thing. Many things repeated 183 times would be “torture” but wouldn’t be if performed rarely. (183 belly-slaps, anyone?)
March 1, 2010, 10:55 amAnderson says:
As someone who’s just been characterized as an “armchair waterboarder”
I didn’t mention you specifically or have you specifically in mind; if you object to whether the shoe fits, then please, don’t try it on.
JRC gave a source for “a few seconds”, I’m happy to concede that if you think “a few” differs from “approximately two.”
The memos, IIRC, refer to “20 to 40 seconds.” There are ambiguities. Was water actually applied to a cloth for 2 seconds, which was then left to block nose and mouth for 20 to 40 seconds? And so on.
The CIA’s eagerness to destroy the videotapes does not incline me to accept that they tortured according to Hoyle.
March 1, 2010, 11:00 amShelbyC says:
With which side?
March 1, 2010, 11:16 ambailey says:
So, is 122 minute prolonged? 25 minutes per session if broken into 5 parts?
March 1, 2010, 11:18 amShelbyC says:
Maybe, but 40 seconds with four hour breaks strikes me as evidence of an intent to avoid prolonged mental harm, and administer repeated short term episodes of torture instead.
March 1, 2010, 11:25 amBart DePalma says:
Orin:
Don’t you see the contradiction in that statement? Waterboarding triggers an involuntary gag reflex and inflicts panic for so long as the water is poured – reportedly not longer than a minute and a half. There is no intent nor need to inflict prolonged mental pain because most folks break in less than a minute. Nor is there any evidence from the thousands of military members who underwent the treatment, like my brother the USAF pilot, that it causes prolonged mental pain.
The military does not consider any of them to be “torture” because they are all used in SERE training.
In any case, there is no medically objective method of distinguishing severe pain (illegal torture) from non-severe pain (perfectly legal interrogation) and thus whatever schools of thought have arisen about what is torture under the statute are purely subjective opinion.
March 1, 2010, 11:30 amJoe says:
I think we all agree that the memos were wrong in concluding that waterboarding did not satisfy the legal definition of torture that is provided in 18 U.S.C. 2340 — “specifically intended to inflict” to inflict “the prolonged mental harm” caused by or resulting from:
I’m not convinced that this is true if “we all” covers people that comment here in particular. I would hope this was true, but sadly, it doesn’t seem to be.
March 1, 2010, 11:37 amorca says:
Interrogation techniques shown to U.S. military personnel to teach them about torture can’t be torture?
No contradiction there.
March 1, 2010, 11:38 amAnderson says:
The military does not consider any of them to be “torture” because they are all used in SERE training.
Uh, no. Truer to state: the military considers *all* of them to be torture, which is *why* they are used in SERE training.
(Again, I don’t think (1-3) duly limited constitute torture, but they are abusive, and characteristic of what the military expects from our enemies.)
March 1, 2010, 11:46 amJoseph Slater says:
Orin: Well sure, you’re secretly a left-wing democrat. But that doesn’t necessarily make you a hack, does it?
March 1, 2010, 11:53 amChris Travers says:
I do.
Really, if Yoo is on record saying we can threaten to crush the testicles of children of those we are interrogating to threaten them into cooperating, I think it is hard to argue that thumbscrews, strapedos, torture racks, etc. would be banned either.
March 1, 2010, 11:53 amyankee says:
It does not follow from the fact that a standard is vague that no line can be drawn at all and every application is mere “subjective opinion.” If you really believe that then the entire American legal system is reduced to “subjective opinion.”
If a form of suffering* so awful that every victim breaks in less than a minute is not severe, then the word “severe” has been stripped of all meaning.
*There’s a reason the statute distinguishes between pain and suffering; there are lots of forms of suffering that are not pain. Asphyxiation is one of them, at least as I understand it.
March 1, 2010, 11:57 amBart DePalma says:
Anderson says:
SERE gives trainees a mild taste of what an actual enemy will do to them. It is meant to be abusive without being torture. SERE is prohibited by the Torture Statute from inflicting actual torture on their trainees. The interrogations are very carefully planned and monitored to avoid crossing the line into torture. It appears that CIA adopted the SERE methods precisely because they were effective and fell short of torture.
March 1, 2010, 12:01 pmorca says:
Sure they did. That’s why they erased all the tapes of their water boarding sessions as soon as people started discussing war crimes.
March 1, 2010, 12:05 pmyankee says:
Assuming, arguendo, that the waterboarding applied in the SERE program is legal, it is different in a number of ways from waterboarding applied to an interrogation victim. For one thing, 20 seconds, the minimum time referenced in the torture memos, is the maximum time the technique can be applied to a SERE trainee. The SERE trainee can also demand that it stop at any moment, which a victim of interrogation cannot. The trainee also knows that the experience will actually stop and the trainers do not want to cause permanent harm, something very much unknown to someone being interrogated.
Also, does inflicting pain or suffering on someone who has volunteered for a training program, which they are free to leave at any moment, count as pain or suffering inflicted under color of law? If not then it is not within the statute.
March 1, 2010, 12:09 pmShelbyC says:
If you’re suggesting that the CIA went beyond what what authorized, that’s a seperate issue that doesn’t implicate Yoo and Bybee, no?
March 1, 2010, 12:10 pmAndrew says:
Anderson, I think you’re clearly wrong on that score. According to an April 25, 2009 article in the Washington Post, Lieutenant Colonel Daniel Baumgartner said: “obviously the United States government does not torture its own people.”
If you want to speak for the American military, please quote them. Thx.
March 1, 2010, 12:10 pmAnderson says:
SERE is prohibited by the Torture Statute from inflicting actual torture on their trainees.
Incorrect. SERE training is voluntary. And I don’t think it’s “under the color of law,” either.
March 1, 2010, 12:11 pmBart DePalma says:
orca:
SERE training is classified to conceal the methods with which we train our soldiers and is not at all pretty. That is why tapes of the training are not disclosed.
CIA interrogation is classified to conceal the methods with which we interrogate the enemy and is not at all pretty. That is why tapes of the interrogation are not disclosed. The tapes here were destroyed to prevent their leaking and use as al Qaeda propaganda by the enemy and their useful fools here.
March 1, 2010, 12:11 pmyankee says:
Well, if “prolonged mental harm” means something along the lines of PTSD, rather than something the statute takes for granted as resulting from the enumerated acts, which is what many here seem to be arguing, then those things might well not be torture either. Do thumbscrews reliably cause PTSD?
March 1, 2010, 12:13 pmAnderson says:
obviously the United States government does not torture its own people
Tell it to Jose Padilla.
… As I just said to Bart, I don’t think that SERE training falls under the Torture Act, so it’s not *legally* torture. It’s training to resist torture, in the course of which torture methods are used on soldiers.
There was a long quote from SERE instructor Malcolm Nance in the last Jonathan Adler thread on Yoo that you might find instructive.
March 1, 2010, 12:14 pmAnderson says:
The tapes here were destroyed to prevent their leaking and use as al Qaeda propaganda by the enemy and their useful fools here.
Bart is the secret alias of George Tenet, which is how he knows why the tapes were destroyed.
March 1, 2010, 12:18 pmuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by bigtkirk: Orin Kerr provides a useful overview of the legal issues involved in the torture memos controversy: http://j.mp/a9m3tN...
March 1, 2010, 12:19 pmAndrew says:
Anderson, Padilla was not waterboarded, was he? Anyway, Lt. Col. Baumgartner was referring to SERE trainees rather than detainees. Thanks for acknowledging that the waterboarding of trainees does not necessarily amount to torture.
March 1, 2010, 12:19 pmGuest14 says:
Listen, soldiers are required to stand, so being forced to stand, no matter for how long, can never be torture. Likewise, soldiers may practice hand-to-hand combat, so being struck can never be torture. Soldiers are from time to time nude and wet, so that likewise can never be torture.
What is so difficult to understand about this?
March 1, 2010, 12:22 pmorca says:
Of course they were.
You do know rationalizations are a poor substitute for the truth, right?
March 1, 2010, 12:22 pmchad says:
I agree with JRC. The description of KSM being waterboarded 183 times is inaccurate. The SOP defining the method to be used is quite specific on the procedure:
and
The number 183 seems to come from page 37 of the Bradbury report which references page 91 of the CIA IG report reading through the report it is clear that the number 183 is the number of times water was applied to the cloth not 183 separate sessions, which is what is implied when people say that KSM was waterboarded 183 times. A small difference maybe but important I think. One is in compliance with the guidleines laid down and the other is far in excess.
March 1, 2010, 12:27 pmBart DePalma says:
Anderson says:
No, it is training to resist interrogation. There is far more to interrogation and resisting it than simply enduring a range of coercion from abuse to actual torture.
Nance is describing a completely different method where water is forced into the lungs and stomach of the interrogated SEAL. The CIA uses the Army and Air Force SERE method of running water over a cloth covering the mouth and nose.
The former method can cause physical pain and very real drowning. This is what the Inquisition, Japanese and US troops in the Philippines did.
The latter method causes a gag reflex and no physical pain, and has been undergone by reporters with no lasting affect.
March 1, 2010, 12:32 pmSlow says:
I think there has been a consensus forming around the standing and sleep deprivation. That was your question right?
The camp forming against these techniques tends to focus on the severe physical health effects (as opposed to the mental affects) that these two actions can cause. I think this occurs not because the mental affects are small, but because it makes a better argument when one can point to organ failures, and long term physical ailments, rather than to mental problems that tend not garner as much sympathy (just my opinion here).
For the standing – you get all sorts of blood clotting issues and numerous other health problems, both long term and short term. I wish I could find it again, but there was even some medical explanation about how the standing method employed by the the US was basically a modified crucifixion. Medically speaking, the body would experience the same sort of effects from prolonged standing in the same position with arms extended, that would occur during a crucifixion. While there are numerous ways to die from crucifixion, one purported way is asphyxiation as the muscles weaken and one can no longer support your body weight. Forcing people to stand in a the same place with arms extended seems to be an a means of inflicting lots of pain, exhaustion and possible long term injury on individuals that has been employed to differing degrees for thousands of years.
Sleep – There also seems to be a general consensus growing that long period sleep deprivation not only has short and long term mental impact, but also short and long term severe physical impact. A few days of sleep deprivation can kill a cat etc…
The medical opinion seems to bee that long term sleep deprivation effects the way the brain works. Without rest, the brain stops working correctly and the nervous system starts having problems regulating the body correctly. Apparently you can cause organ failure after several days of sleep deprivation.
I think there is however no consensus around other types of sleep deprivation. This being were people are allowed to rest, but only for short periods of time. Something like 20 hours up, 2 hours down, and randomizing the sleep patterns. Scientists that study sleep generally agree that this would cause substantial mental impact (whether long term effects may result seem to be an open question, but the short term impact seems to be the whole point of the enterprise). Also there is an open question of the physical impact of these shorter duration sleep deprivation techniques. One would not see the dramatic physical deterioration that would accompany a forced sleep deprivation of say 50-72 hours.
March 1, 2010, 12:35 pmAnderson says:
Anderson, Padilla was not waterboarded, was he?
I didn’t say he was; the good colonel said that we don’t torture Americans, which was an easy set-up.
Anyway, Lt. Col. Baumgartner was referring to SERE trainees rather than detainees. Thanks for acknowledging that the waterboarding of trainees does not necessarily amount to torture.
It’s not torture legally — I can pay a dominatrix to do to me whatever was done at Abu Ghraib. But obviously, if the treatment does not copy torture methods, it’s not much use in preparing anyone for torture. Of course one can go only so far; some enemies might interrogate by chopping off fingers (why didn’t Cheney do this? didn’t he want to protect America?), which SERE does not want to do.
But SERE was inspired by Asian imitations of NKVD methods, which were designed to “brainwash” and yield false confessions, such as were obtained from Bukharin, or Mindzentsy, or John McCain.
March 1, 2010, 12:36 pmDavid Schwartz says:
Except, of course, for the reporters who claimed they had lasting mental effects including nightmares, flashbacks, and feelings of suffocation.
March 1, 2010, 12:42 pmAnderson says:
there was even some medical explanation about how the standing method employed by the the US was basically a modified crucifixion
I think that’s right. Chaining someone to a wall with his arms raised or outstretched is fundamentally identical, though at least you don’t get nails through your wrists. (Palms won’t work in crucifixion; the body can tear loose & fall. Always wondered how long it took the Romans to figure that out.)
IIRC, we killed a guy in Bagram using such a technique, inadvertently — wasn’t he the focus of Taxi to the Dark Side?
March 1, 2010, 12:42 pmAnderson says:
Bart’s inaccuracies about waterboarding can be reviewed on the Adler thread; for instance, the Japanese did sometimes use a cloth on the face. And a cloth will typically allow some water into the passages. Try it at home: put a washcloth on your face and place your face in the shower spray.
March 1, 2010, 12:45 pmyankee says:
1) Water goes straight through a wet cloth, though some of it is blocked. You can try an experiment in your kitchen. Inhaling water under these circumstances is a certainty, though of course less is inhaled.
2) You have yet to provide any reason to believe that the wet cloth makes the degree of suffering materially less. The details of the procedure have varied throughout history. The burden is on you to show that the variant we used produce a substantial (as opposed to minor) decrease in the level of suffering relative to the other variants, which you cannot do. For example, the version with the cloth still causes people to break in less than a minute. If the degree of suffering produced is not severe, why does that happen?
3) As jukeboxgrad documented on another thread, the use of the cloth makes it worse, not better.
4) The Japanese did it in several different ways including using the cloth.
March 1, 2010, 12:49 pmsteve s says:
“CIA interrogation is classified to conceal the methods with which we interrogate the enemy and is not at all pretty. That is why tapes of the interrogation are not disclosed. The tapes here were destroyed to prevent their leaking and use as al Qaeda propaganda by the enemy and their useful fools here.”
Funniest thing I read so far today. These are not secrets. We have ended up releasing many who were innocent. If the tapes showed useful information, they would have been kept for future study. If they did nothing wrong, they had no reason to destroy them.
“Listen, soldiers are required to stand, so being forced to stand, no matter for how long, can never be torture.”
I was in the military for 8 years. We never had to stand that long. I know of no one who has. This standing will cause ischemic pain. They will develop edema in their lower extremities. When this happens acutely, it is painful.
“Soldiers are from time to time nude and wet, so that likewise can never be torture.”
Ok, there was that great beach in Florida where I met both of those requirements. However, hypothermia is life threatening. Somewhere around 32 degrees centigrade we start to develop spontaneous arrhythmias. If one had recent injuries, platelet function would be inhibited and bleeding may start. Myocardial oxygen demand goes way up when we get cold. Anyone with pre-existing coronary artery disease subjected to this treatment would be at risk of myocardial ischemia and an MI.
On waterboarding, as someone who shoves tubes through vocal cords every day, I would be concerned about the issue of laryngospasm, especially if the subject was tired or on any medications. By definition, the people we train at SERE are extremely fit and well monitored and know that no one wants them hurt. They also have medical monitoring.
Steve
March 1, 2010, 12:53 pmAnonCorrespondent says:
That’s a statistical fallacy. It’s similar to one that NASA managers fell for, when assessing the risk the Shuttle crashing. Their engineers told them that the risk of crash on any particular Shuttle launch was something like 1 in 100. But after a dozen or two dozen Shuttle launches where nothing went wrong, the managers gradually grew more comfortable with the Shuttle and started to reduce their own estimate of the risk of crash on any particular launch to significantly below this, figuring that if everything had gone fine on all of those launches so far, the risk couldn’t be that great. Yet their reasoning was fallacious: the lack of any crash in the first two dozen Shuttle launches is entirely consistent with the statement that the risk is 1/100 chance of a crash per launch.
Similarly, just because I haven’t died after the first dozen or two dozen waterboardings doesn’t mean that the risk of dying in any subsequent waterboarding is acceptable. If the risk of dying in any particular waterboarding is 1/100, that’s unacceptably high — high enough to pose a “threat of imminent death” — yet entirely consistent with the fact that I haven’t been killed yet. It would be irrational to conclude that because I haven’t died yet, the chances of dying in the next waterboarding are minimal.
March 1, 2010, 12:54 pmGlenn Dale says:
My answer is not strictly limited to the legal definition of torture as posited by the question but is at least partially based on what I personally think the definition of torture should be in this context.
Furthermore, I find it impossible to categorically state that any of these techniques is NOT torture and therefore permissible b/c so much depends on the circumstances of the action.
So starting at the top:
1. Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes them.
I can ALMOST categorically state that this is NOT torture. However, I can easily conceive of an eager beaver interrogator abusing this to the point of torture. One could force a prisoner to wear a very sturdy shirt such as a Judo Gi, then have a few very large/strong men grab the lapels and violently shake the prisoner for 1/2 an hour. That could easily cause permanent physical injury. AS an isolated event I think this is NOT torture, but one has to be wary of saying it is NOT torture b/c that leads to abuses.
2. Attention Slap: An open-handed slap to the face aimed at causing pain and triggering fear.
A little tougher but the same analysis as above applies. If done rarely and actually done with restraint (i.e. to cause SOME pain and fear) I do not think this is statutory torture, despite the fact that it is done purely and simply to cause pain/fear. This however is even more easily abused than the Attention Grab. A large strong man could easily do permanent physical injury with a very vigorous slap. And continuous repeated slaps can certainly cause injury.
3. Belly Slap: A hard open-handed slap to the abdomen. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
Same as above. I don’t think in isolation or with restraint this is torture but you can’t state that ALL such Belly slaps are allowed. A sufficiently hard belly slap or repeated slaps could be torture.
4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor, for more than 40 hours.
This is where I believe we start crossing over into presumptive torture.
I can justify the first three acts as isolated acts for the purpose of gaining attention and creating a little bit of intimidation. When anything, slapping or standing is done for so long and only for the point of wearing down a person’s resistance I think it crosses over into torture.
Forcing somebody to stand for long periods of time can’t be justified as an “attention getting” procedure but has only the purpose of attempting to break a person’s will through the application of pain and the creation of the feeling that it will never end.
5. Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees Fahrenheit (10 degrees Celsius), while being regularly doused with cold water.
This also I think is torture. There is NO purpose except to cause pain that will break a person’s will. Using the Yoo standard of pain equivalent to death or severe bodily/organ damage/failure qualifies this as torture. People die or suffer grave injuries from hypothermia and this mimics the pain such person’s suffer.
6. Waterboarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Material is wrapped over the prisoner’s face and water is poured over them.
Again I believe this is torture and also satisfies even the Yoo standard. Dieing of drowning feels exactly (or so I would imagine) as being suffocated to the point of passing out by water boarding.
March 1, 2010, 12:59 pmShelbyC says:
I’m sure the Japanese sometimes just asked nicely for the information, too. That wasn’t his point. And the procedure described in the memos says no water enters the lungs, but some may enter the mouth and nasal cavity.
March 1, 2010, 1:03 pmEH says:
The “Attention Grab” (nice sophistic banalaty in these terms, btw) is an end-around the punching prohibited in #3. “Grabbing the shirt” would seem to be a limitation to restrict the punching to the sternum and ribcage.
The “Attention Slap” can cause whiplash and other tissue damage to the neck and head.
Furthermore, it seems reasonable to conclude that SERE training is actually training on how to torture. “This is how it’s done, y’know, wink wink, when the other guy does it.” If it was truly resistance training, the participants would work on their endurance over time by repeating the exercises. I’ve not seen any indication that this “training” is encountered more than once during the SERE course.
March 1, 2010, 1:31 pmrb1971 says:
Not sure I am adding anything over 100 comments in, but the “Long Time Standing” item could be torture depending on the amount of time, and whether (for example) individuals had their arms restrained to prevent sitting (which would have some of the effect of crucifixion, not that I think about it).
March 1, 2010, 1:36 pmJRC says:
Actually it is unreasonable and rather silly. I’m not a military guy but there would be little reason to train anyone going through SERE in the art of how to waterboard when the waterboarding is being performed in such limited circumstances. It’s not as if the soldiers out in the field are capturing terrorists and performing waterboardings; I think it’s been done on only three terrorists if I’m not mistaken.
March 1, 2010, 2:12 pmjukeboxgrad says:
Jack G:
observer:
bailey:
Andy Bolen:
jrc:
chad:
What a nice example of a bunch of different people parroting the same ignorant falsehood.
KSM was indeed waterboarded 183 times. How do we know? Because of this (pdf, p. 37):
And where does this memo, or any other memo, indicate that each instance only means “a few seconds?” Nowhere. So why are so many people making that claim? Because of this Fox article that jrc cited. It says this:
So the “source” for Fox and all the commenters above is an unnamed “official” who makes a claim that is not supported by the text of the memos. Because the memos do not indicate that “183 times” means “183 pours.”
Please consider these two statements:
A) KSM was waterboarded 183 times
B) The CIA used the waterboard 183 times in the interrogation of KSM
Do you see any difference in meaning between A and B? Do you see any difference in meaning between “was waterboarded” and “used the waterboard?” Because I don’t. Nevertheless, Fox said this: “Khalid Sheikh Mohammed Was Not Waterboarded 183 Times.” And of course they never once cited the original text from the OLC memo (“the CIA used the waterboard …183 times … in the interrogation of KSM”).
What NYT and others have said is A, and there is no difference in meaning between A and the exact text that appears in the memo. Meanwhile, the Fox text is plainly contrary to the exact text that appears in the memo.
And please consider this hypothetical scenario. I strap you to the waterboard. I then drown you for a minute, and then I watch you cough for a minute. I repeat this 300 times. 10 hours later, I unstrap you from the waterboard. Question: how many times have you been waterboarded? Is 1 the correct answer, or is 300 the correct answer?
Because Fox (and the various commenters here) are claiming that the answer is 1. Which seems a bit odd to me. Especially because we were told over and over again that waterboarding is something that lasts just a minute or two, at most. So given that understanding of waterboarding, one would think that if a person was waterboarded only once, this would mean that they were on and off the waterboard within a minute or two.
So please notice how the pro-torture crowd has suddenly changed the definition of being waterboarded ‘once.’ Here’s the old definition: ‘we asphyxiate you for a minute or two, and then we never have to do it again, because the procedure is so magically effective.’ Here’s the new definition: ‘we asphyxiate you over and over again, maybe for hours at a time, but we still call that once, even though we’re doing it to you over and over again.’
Disingenuous shifts like this work great, provided you’re addressing people with amnesia.
chad:
Show us where you find that meaning by “reading through the report.”
And this is another area where you either confused, dishonest, or both. You quoted at length from Bradbury’s memo of 5/10/05. Yes, there are “guidelines” in that memo. Trouble is, those guidelines never appeared previously. They were written roughly three years after the waterboarding took place. In what way are they relevant?
March 1, 2010, 2:15 pmAnonsters says:
Perhaps. And emptywheel has pointed out that Steven Bradbury was using an NSA e-mail address when he was discussing the TSP program.
March 1, 2010, 2:17 pmAnderson says:
And the procedure described in the memos says no water enters the lungs, but some may enter the mouth and nasal cavity.
Anatomically, this seems like a tall order. What goes into my nasal cavity has a funny way of ending up in my lungs.
Regardless, you’re smothering someone. Not much different from holding a pillow over KSM’s face until he starts to turn blue.
March 1, 2010, 2:30 pmAnonsters says:
Your finger ends up in your lungs?
March 1, 2010, 2:31 pmyankee says:
Wrong. From the OPR report, the description of the procedure Yoo was asked to authorize:
The water, which goes straight through the cloth, goes into the victim’s nose. If you try to breathe with water in your nose, water goes into your trachea and from there to your lungs. Same if you open your mouth and try to breathe that way.
Do you have a citation for your assertion that the description says no water enters the lungs?
March 1, 2010, 2:36 pmjukeboxgrad says:
shelbyc:
More fictional nonsense. You are channeling WSJ, which once said this:
It’s true that the Bybee memo of 8/1/02 said this (pdf, p. 4):
Trouble is, the CIA IG later determined that the procedure Bybee had described was not the procedure the CIA used. This is from the Bradbury memo of 5/10/05, where he quotes the IG report (pdf, p. 41):
“The DOJ opinion” is a reference to the Bybee memo of 8/1/02 (i.e., the memo that said “the individual does not breathe any water into his lungs”).
So the people (like WSJ, you, and many others) who persistently claim that water did not enter the lungs are pretending that CIA IG did not discover what it discovered: that “the waterboard technique was different from the technique described” by Bybee.
And it’s not just that “some may enter the mouth and nasal cavity.” The relevant text is this (pdf, p. 13):
There is enough that you are prevented from breathing. That’s more than “some.”
And if water is accumulating in my nose and mouth as result of the fact that I am struggling to breath while water is being poured over my face, what magic force prevents that water from traveling past my mouth and nose and into my lungs? Wouldn’t water in my lungs be the natural and inevitable result of the fact that I’m trying to breath even though water has accumulated in my “mouth and nasal cavity?” I see Anderson has also explained this.
Either there’s some magic force I’m not taking into account, or WSJ is promoting blatant misinformation on behalf of the torture apologists. Could that be? If so, I’m shocked.
By the way, note the delicate, lawyerly wording. It’s not that ‘water didn’t enter the lungs.’ Or ‘we made sure water didn’t enter the lungs.’ Or ‘we used a procedure that prevented water from entering the lungs.’ It’s that we didn’t expect water to enter the lungs. That is, we were depending on some mysterious, magic force to keep the water out of the lungs. And it’s not our fault that this magic force failed to materialize. The important thing is that we expected it to. We had no responsibility beyond adopting a stipulated expectation. And the fact that the expectation defies science is the victim’s problem, not ours. Here in the Bush administration, we have the power to make science bend to our needs. And likewise for the law.
yankee:
It’s true that there is such a description in the 2002 memo, but I’ve explained why that description is misleading.
March 1, 2010, 2:43 pmAnderson says:
Your finger ends up in your lungs?
[Rimshot]
March 1, 2010, 2:44 pmAnonsters says:
In addition, on its face that doesn’t say that water does not enter the lungs. It just says that the detainee doesn’t “breathe [it] into his lungs.” Whatever that means.
March 1, 2010, 2:46 pmjukeboxgrad says:
Good point. Breathing water is a contradiction. The original statement makes no sense. It’s meaningless.
March 1, 2010, 2:48 pmjukeboxgrad says:
OK:
Yes, we did this “for more than 40 hours,” but one has mentioned how much more. We did it for 180 hours. That is, 180 hours of sleep deprivation while being continuously shackled in a standing position, being fed a partial starvation diet, and being subject to temperature extremes.
Anyone want to claim that’s not torture? Anyone want to claim that if a future enemy did this to an American, that you would refrain from calling it torture?
March 1, 2010, 2:52 pmAnderson says:
Taylor and Luban trade blows again, with Taylor now arguing that “pain and suffering” means the same as “pain,” supposedly “implicitly conceded” by the OPR memos because they listed Bybee & Yoo’s errors and this was not one of them.
Besides the difficulty of listing EVERY mistake in over 100 pages of notoriously bad reasoning, it’s black-letter law that a statute is not to be read to exclude part of its language if there’s any reasonable intepretation that gives effect to all its terms. And there can be “suffering” that is not “pain” in its ordinary sense.
March 1, 2010, 2:55 pmyankee says:
They’d find some specious distinction, or just make one up. Perhaps the shackles they used were less comfortable, or the lighting was worse, or the food was less tasty, or they were kept on it for 182 hours instead of 180.
March 1, 2010, 3:00 pmJames H says:
1) If a single instance of one of the six techniques is ajudged “not torture,” it does not necessarily follow that repeated use of one of the techniques is not torture. For example, if we ajudge “cold cell” not to be torture, that judgment might change if a person is kept in a cold cell for six hours one day, then eight hours another day, then 12 hours on the subsequent day.
2) These techniques, if used in combination with each other, could very well be torture — say, long-time standing, while a person is being attention grabbed and attention slapped.
For the record, I’m appalled at all of the techniques deployed, I’m disgusted that legal cover was provided for them. I’m also somewhat disturbed that lawyers (including myself in this email!) and legal scholars are engaged in what amounts to a leisurely salon-style debate.
However, particularly with the emails missing, I can’t come up with a good reason to visit some sort of administrative punishment on Bybee or Yoo. No matter how distasteful I or others find the conversation or how much some attorneys or legal scholars criticize the memos, the fact is that room remains in the torture statutes for interpretation. And I think it would set a horrid precedent for these men to be punished for the offense that amounts to giving bad legal advice.
If giving bad legal advice was grounds for punishment, every lawyer in America would probably have to be disbarred.
March 1, 2010, 3:03 pmJRC says:
Wow. Parroting an ignorant falsehood = citing a news report quoting a US official.
Right, which is noted by that exact same Fox article: “The memos did not note that the sessions would be made up of a number of short pours — the ones the U.S. official said lasted “a matter of seconds” — and that created the huge numbers quoted by the New York Times: 183 on Mohamed, 83 on Zubaydah.”
In fact, the Bradbury memo doesn’t appear to define “use of the waterboard” at all, which seems to the problem. Nothing the official quoted in the FOX article said is contradicted by the Bradbury memo so it does not really prove the article a falsehood. Does “use of the waterboard” mean a pour? Does it mean taken out of his cell and strapped to the board for another waterboarding session? KSM himself told the Red Cross he was waterboarded 5 times, not 183. How does that square with the memo? Fortunately for the rest of us, you’re the only one who can devine the true meaning.
What’s your support for saying anyone was waterboarded for “hours at a time?” Or are you parroting ignorant falsehoods?
March 1, 2010, 3:19 pmjukeboxgrad says:
And it should be noted that the torture lawyers didn’t tell CIA that more than 180 hours of shackled, standing, sleep deprivation wasn’t OK. They just made the affirmative statement that 180 hours was OK. And they added this (pdf, p. 12):
So much for the often repeated claim that the OLC torture lawyers did the brave and noble work of setting clear limits on torture. For example:
That claim is fiction. What the OLC memos actually said (about torture by standing shackled) was that 180 hours was OK, and they weren’t going to say that more than 180 hours wasn’t also OK.
March 1, 2010, 3:33 pmAnderson says:
These techniques, if used in combination with each other, could very well be torture — say, long-time standing, while a person is being attention grabbed and attention slapped.
That was the reasoning that led Susan Crawford to conclude that we tortured al-Qahtani at Gitmo:
I don’t know that I agree with her about the “medical impact,” but her conclusion seems correct.
March 1, 2010, 3:50 pmc.s.b. says:
1. A technique is not torture simply because, given enough time, someone could imagine an absurd circumstance or application. (e.g., patting on the head is torture, because if you do it for weeks on end the skull will collapse).
2. By that standard, techniques 1-3 may be inhumane treatment, but not torture.
3. Techniques 4-5 move into a grey area, but are probably not torture based on the text of the statute and the way in which the techniques are calibrated to that language.
4. Technique 6 is arguably torture, but not clearly so. First, we must remember that we are talking about technique as authorized, not on the acts actually taken. Second, the authorization was based on the premise that no water would enter the lungs, and that the technique would be used sparingly (in comparison to 183 times). Third, there is a legitimate question of whether the technique as authorized causes immanent threat of harm (since the subject has the sensation of drowning but still knows that he is not actually breathing water) or whether the prolonged mental harm would result.
March 1, 2010, 3:57 pmAnderson says:
Second, the authorization was based on the premise that no water would enter the lungs, and that the technique would be used sparingly
Y’know, some of these defenses sound like they’d come out of the mouth of a defense lawyer at Nuremberg. Which, right there, indicates these acts are on the wrong side of the line.
March 1, 2010, 4:06 pmJRC says:
I think that’s at least your third Nazi reference in these comments. “A good rule in most discussions is that the first person to call the other a Nazi automatically loses the argument.”
March 1, 2010, 4:27 pmMark Field says:
If it makes you feel better, we can use the term “Stalinist” instead. When the issue is torture, it’s kind of hard to come with examples by decent folk.
March 1, 2010, 4:31 pmc.s.b. says:
It’s not crossing the line to use precise language when talking about proposed techniques. Particularly when that’s your job. DOJ attorneys don’t have the luxury of only having to speak in platitudes.
March 1, 2010, 4:35 pmjukeboxgrad says:
jrc:
Treating any Fox article as a credible “news report” is a stretch. And this particular “new report” starts with a headline that is a falsehood. And it’s quoting an anonymous “official” from the same administration that has been accused of torture, and that has a track record of lying. And the statement made by the official is unsupported by the text in the memo, which is why Fox never cited the actual text from the actual memo.
Your credulity is adorable. Yes, I call that “parroting an ignorant falsehood.” It’s not as if it’s hard to find the original documents and do some of your own thinking.
Yes, the article admitted that “the memos did not note that the sessions would be made up of a number of short pours,” but they pointedly omitted the actual text from the actual memo. Because that text demonstrates that their headline is a falsehood.
I already explained how the headline is a falsehood. If you want to interpret the headline as something other than a falsehood, you need to explain where you see a difference in meaning between “was waterboarded” and “used the waterboard.”
This is the relevant text from the ICRC report:
Consider these two statements:
A) KSM was waterboarded 183 times.
B) KSM experienced 5 sessions of waterboarding.
A is what CIA IG said. B is what KSM said. I see no contradiction between A and B. Because I can be waterboarded many times in one session.
See here (pdf, p. 14):
OLC explicitly approved a waterboarding session lasting two hours. OLC also said we could do that twice a day. And what’s the stipulated interval between session 1 and session 2? 10 minutes? 10 seconds? No one knows, because no one said. Meanwhile, we were told over and over again that waterboarding is something that lasts just a minute or two, at most.
And it’s very important to understand that the “two hours” reference I just cited did not appear until 2005. Compare that to what is found in the 2002 memos. This is what we find in 2002 (pdf, p. 4):
Where did OLC, in 2002, tell CIA they could not exceed 20 minutes? Nowhere. All OLC did is write down what CIA said, as if OLC were just stenographers. And then in 2005, after CIA IG found that “the waterboard technique was different from the technique described” by Bybee (in 2002), then OLC simply did some additional stenography, to retroactively justify what CIA had done.
And note also that even the 2005 statement about “two hours” is not an instance of OLC telling CIA that they must not exceed two hours. It’s simply OLC writing down that CIA said that CIA had established its own guideline of two hours.
In other words, in both 2002 and 2005, the process went like this:
CIA: this is what we have done and/or what we want to do.
OLC: OK, fine.
And when that conversation took place in 2005, OLC didn’t seem to mind at all that what CIA had actually done the first time around had greatly exceeded what they had said they would do.
OLC had an endless supply of blank checks, and CIA could fill out the check however they wanted.
==============
csb:
There was never any reason, other than magic, to think “that no water would enter the lungs.” And you are glossing over the fact that OLC gladly renewed the authorization even after they knew that the technique had not been “used sparingly.”
March 1, 2010, 4:36 pmjukeboxgrad says:
csb:
DOJ used precise language when they stenographically recorded what CIA told them to write down. When you try to understand the definition that Yoo et al were using, it was anything but “precise.” I already demonstrated that here.
March 1, 2010, 4:41 pmEH says:
Why are you artificially limiting my example only to waterboarding? There are several techniques demonstrated in SERE training that can be performed in the field.
I’ve got a good reason: for losing the emails.
March 1, 2010, 4:48 pmc.s.b. says:
OLC operates by answering specific legal questions. Here, the OLC was asked, “under these specific conditions, would these specific techniques violate this particular statute?” OLC’s job is to answer that question–not to make a policy recommendation, or to provide an answer to a different set of facts that OLC thought up instead.
March 1, 2010, 4:48 pmc.s.b. says:
I’m fairly certain that midlevel DOJ employees don’t have any control over government email servers.
March 1, 2010, 4:52 pmjukeboxgrad says:
csb:
The problem is that they kept saying the answer was “no.” Even though when CIA asked the question in 2005 OLC knew that CIA had busted through the limits that were being discussed in 2002. How did OLC handle that? By relocating the limits. How convenient.
And even though there is a long history of US courts defining waterboarding as torture (pdf). Yoo et al referenced that history this many times: zero.
And are you seriously claiming that standing shackled and sleepless for 180 hours is not a violation of USC 2340? And various other laws and treaties?
March 1, 2010, 5:03 pmJRC says:
Right, because citing salon.com as you do is the hallmark of objectivity.
Let’s play your game. Consider these three statements:
A) KSM was waterboarded 183 times.
B) KSM experienced 5 sessions of waterboarding.
C) use of the waterboard or waterboarded means a pour of a few seconds.
I see no inconsistency between these three. As you point out, you can be “waterboarded” many times in a session. This does not prove false the statement that “waterboarding” “use of the waterboard” or “was waterboarded” in the context of 183 times means a pour of a few seconds. There can be 183 wateboardings – meaning short pours- over five sessions.
This also doesn’t square with your earlier position.
In other words, you said “use of the waterboard” = “was waterboarded.” Now you’re saying “was waterboarded” in the context of KSM actually means something different: a session of waterboarding as opposed to use of the waterboard.
March 1, 2010, 5:07 pmJRC says:
You’re right, Your comments were made in the context of SERE resistance training, which I equated to a discussion of waterboarding.
March 1, 2010, 5:14 pmJRC says:
Excellent. Much more reasoned and mature. Keep up the good work. I think your analysis here will convince many to agree with you.
March 1, 2010, 5:17 pmChris Travers says:
I will join others suggesting that techniques 1-3 would not seem to be presumptive torture in my view even though individual cases might rise to that level. I would further say that techniques 4-6 would seem to be presumptive torture even though individual cases might not rise to that level.
March 1, 2010, 5:41 pmjukeboxgrad says:
jrc:
Fox’s record of hackery is well-documented. If you can show the same magnitude of documentation regarding Salon, then your comment might be something other than pure wind. Likewise, it would help if you could identify a single problem with the Salon article I cited. Because I demonstrated what’s wrong with the Fox article you cited.
That’s true. Except that we have nothing other than a self-serving statement by an anonymous “official” to support the idea that each instance consisted only of “short pours.”
And you haven’t explained how the Fox headline is not a falsehood. To do so, you need to explain where you see a difference in meaning between “was waterboarded” and “used the waterboard.”
This would have been a truthful headline: ‘KSM was waterboarded 183 times, but an anonymous government official has claimed that each instance lasted only a few seconds.’ And ‘we have no corroboration for his claim from any other source.’ Trouble is, the actual headline said something quite different.
No, I never said that ” ‘was waterboarded’ in the context of KSM actually means something different.” Because KSM didn’t say he “was waterboarded” five times. That’s what you said he said, but that’s not what he actually said. What he actually said was that he was waterboarded during five different sessions. Not the same thing.
March 1, 2010, 5:58 pmAnderson says:
I think that’s at least your third Nazi reference in these comments.
I’m not calling anyone here a Nazi, but when you talk about legalizing atrocities, the Nazis do naturally tend to come to mind. What regime should I be reminded of? The UK under Asquith?
March 1, 2010, 5:59 pmjukeboxgrad says:
bart:
It’s truly amazing that certain people are still repeating the false claim that what CIA did actually corresponds with “the SERE methods.” As I noted here, CIA IG found that “the waterboard technique was different from the technique described in the DOJ opinion and used in the SERE training … the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant.” The differences are major, as has been described in this thread and elsewhere.
But I think we can count on certain people to continue to pretend otherwise.
March 1, 2010, 6:07 pmJoe says:
I think that’s at least your third Nazi reference in these comments. “A good rule in most discussions is that the first person to call the other a Nazi automatically loses the argument.”
“[Godwin's] law and its corollaries would not apply to discussions covering genocide, propaganda, or other mainstays of the Nazi Germany, nor, more debatably, to discussion of other totalitarian regimes, since a Nazi comparison in those circumstances is understandable.”
http://en.wikipedia.org/wiki/Godwin%27s_law
March 1, 2010, 6:21 pmleo marvin says:
Mordor under Sauron.
March 1, 2010, 6:26 pmAndrew J. Lazarus says:
Bart is endorsing the method used by the Khmer Rouge. I am so relieved that we are in their company, and not the Inquisition’s!
March 1, 2010, 7:08 pmMark Field says:
C’mon, you’re a tough guy. We know you are because you support torture from the safety of your keyboard. Surely you’ll be proud to stand up in the company you keep: Orcs.
March 1, 2010, 7:35 pmFury says:
What is a partial starvation diet?
March 1, 2010, 8:14 pmAnonsters says:
A diet on which you partially starve?
March 1, 2010, 8:54 pmAnderson says:
Mordor under Sauron.
Oh, I love it. Cheney as Lord of the Nazgul. Yoo as the Mouth of Sauron.
… And Obama as Saruman? Silver-tongued, seeming a friend, but morally indistinguishable from the Dark Lord?
Man, when do Gandalf and Aragorn show up? We need them.
March 1, 2010, 9:10 pmAndrew J. Lazarus says:
Naah, Boromir.
Ralph Nader as Gollum.
March 1, 2010, 9:12 pmloki13 says:
Way to dodge. As Mark Field charitably pointed out, it’s hard to come up with flattering examples when you’re defending torture. I guess we could make a comparison to the French in Algeria, n’est-ce pas? Because once you scratch the surface of a macho torture-supporting keyboard commando, you inevitably find a creamy, brie-filled terrified French surrender monkey inside.
But I guess that’s better than Pol Pot, Stalin, Japan and the “Joy Division/Rape of Nanking”, Hitler, Idi amin Dada and, um, orcs.
March 1, 2010, 9:16 pmjukeboxgrad says:
The CIA called it “dietary manipulation.” “The CIA believes that dietary manipulation makes other techniques, such as sleep deprivation, more effective.” They made sure everyone got at least 1000 kilocalories per day. “In general” people supposedly got more, but that phrase is loose enough that you could drive a truck through it. See pdf, p. 7.
Average per capita world food consumption is about 2800 kilocalories per day.
March 1, 2010, 10:08 pmTatil says:
I have an easy solution: Whatever method we believe is not torture should be legal for police to employ in interrogations, at least for violent crimes. The fact that many of the posters here believe they or anybody they know will never be subject to any of these methods makes it very easy to claim that these are acceptable.
March 1, 2010, 10:14 pmCatherine Jefferson says:
I’m one of those who would like to see John Yoo hounded out of the legal profession and preferably any honorable profession because of what he did. However, whether what he did was *wrong* is a completely separate issue from whether he misrepresented the law or not. And *that* is a separate issue from whether he did so knowingly or just made a mistake.
You appear to be asking whether he misrepresented the law or not, not whether he did so (if he did so) knowingly or by mistake, and not whether what he did was immoral or not irrespective of the law. So let’s answer your question systematically. I copied your six questions, and beneath each question am considering each point in the law you cited and whether it applies or not. (One advantage to being methodical is that rage doesn’t take over.) :/
| 1. Attention Grab: The interrogator forcefully grabs the shirt
| front of the prisoner and shakes them.
|| (A) the intentional infliction or threatened infliction of severe
|| physical pain or suffering;
This isn’t the infliction of severe physical pain or suffering. It might well qualify as a threat to escalate to severe physical pain or suffering, especially if done to a restrained individual. I would call this one a grey area — something that I feel a decent human being would not do in cold blood, but in most circumstances or contexts not severe enough to qualify as torture.
|| (B) the administration or application, or threatened
|| administration or application, of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| the personality;
No. Whatever the “attention grab” is, it isn’t this.
|| (C) the threat of imminent death; or
No.
|| (D) the threat that another person will imminently be subjected
|| to death, severe physical pain or suffering, or the
|| administration or application of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| personality
No.
| 2. Attention Slap: An open-handed slap to the face aimed at
| causing pain and triggering fear.
|| (A) the intentional infliction or threatened infliction of severe
|| physical pain or suffering;
Grey area again, for the same reasons and with the same caveats as with #1.
|| (B) the administration or application, or threatened
|| administration or application, of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| the personality;
No.
|| (C) the threat of imminent death; or
No.
|| (D) the threat that another person will imminently be subjected
|| to death, severe physical pain or suffering, or the
|| administration or application of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| personality
No.
| 3. Belly Slap: A hard open-handed slap to the abdomen. The aim is
| to cause pain, but not internal injury. Doctors consulted advised
| against using a punch, which could cause lasting internal damage.
|| (A) the intentional infliction or threatened infliction of severe
|| physical pain or suffering;
I’d say this is darker grey, edging towards actual torture and depending upon the context, might cross the line.
|| (B) the administration or application, or threatened
|| administration or application, of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| the personality;
No.
|| (C) the threat of imminent death; or
No.
|| (D) the threat that another person will imminently be subjected
|| to death, severe physical pain or suffering, or the
|| administration or application of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| personality
No.
| 4. Long Time Standing: This technique is described as among the
| most effective. Prisoners are forced to stand, handcuffed and
| with their feet shackled to an eye bolt in the floor, for more
| than 40 hours
|| (A) the intentional infliction or threatened infliction of severe
|| physical pain or suffering;
Yes. This unambigiously crosses the line. :/ I had to stand for a 24 hour stretch once. At the end of the period, I was in such pain that I couldn’t think, and was unable either to walk or sit down properly.
|| (B) the administration or application, or threatened
|| administration or application, of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| the personality;
No.
|| (C) the threat of imminent death; or
No.
|| (D) the threat that another person will imminently be subjected
|| to death, severe physical pain or suffering, or the
|| administration or application of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| personality
No.
| 5. Cold Cell: The prisoner is left to stand naked in a cell kept
| near 50 degrees Fahrenheit (10 degrees Celsius), while being
| regularly doused with cold water.
|| (A) the intentional infliction or threatened infliction of severe
|| physical pain or suffering;
Yes, definitely. :/
|| (B) the administration or application, or threatened
|| administration or application, of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| the personality;
Severe cold has an effect on people similar to that of some drugs. This is IMHO a grey area.
|| (C) the threat of imminent death; or
Yes. If allowed to continue for long, it is an actual threat of imminent death. If the subject is not told how long or is denied access to a clock or means of knowing how long, it is a threat of death intended to appear credible even if it isn’t.
|| (D) the threat that another person will imminently be subjected
|| to death, severe physical pain or suffering, or the
|| administration or application of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| personality
No.
| 6. Waterboarding: The prisoner is bound to an inclined board,
| feet raised and head slightly below the feet. Material is wrapped
| over the prisoner’s face and water is poured over them.
|| (A) the intentional infliction or threatened infliction of severe
|| physical pain or suffering;
Yes.
|| (B) the administration or application, or threatened
|| administration or application, of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| the personality;
Yes.
|| (C) the threat of imminent death; or
Yes.
|| (D) the threat that another person will imminently be subjected
|| to death, severe physical pain or suffering, or the
|| administration or application of mind-altering substances or
|| other procedures calculated to disrupt profoundly the senses or
|| personality
No.
So, of the approved “enhanced interrogation” methods, none violate item (D). The first two arguably do not violate any of the rules and therefore do not constitute torture. I believe that the third through fifth do consitute torture by at least one and maybe more of the stated criteria.
March 1, 2010, 10:24 pmreadery says:
The difficulty with this argument is that 18 U.S.C. 2340 is a secular statute, not a religious one, which by its terms only applies to acts against “persons”. While its understandable that many persons of faith have an expansive religious conception of personhood which includes fetuses and enemy combatants and may personally believe, as a matter of faith, that medical and security professionals engage in “torture” when they conduct routine procedures to secure American’s reproductive health or security rights, our constitution’s First Amendment requires interpreting our statutes based on secular considerations, not based on religion.
As a secular matter, there can be no question that the word “person” as used in the Bill of Rights lacks “extraterritorial application”, just as it lacks “prenatal application”. And there can be no question that, as the Roe v. Wade court has explained it to us, where the Bill of Rights lacks application there simply is no personhood, and is simply no rational secular interest in the state extendinbg the personhood concept beyond its constitutional application, particularly where doing so would interfere with Americans’ fundamental civil rights such as their reproductive health or security rights. Where there is no personhood, the state’s interest is in implementing morality and protecting Americans’ health and safety.
The statute, by its plain terms, makes clear that “torture” has meaning only where personhood applies. It simply doesn’t apply extraterritorially or prenatally, and simply doesn’t extend to the extraterritorial or prenatal activities of reproductive health or security professionals.
March 1, 2010, 10:31 pmreadery says:
A great deal has been said about the dangers of religious fanatics applying religious faith-based principles willy-nilly onto our secular laws. This nation has one secular concept of personhood. Here, as in Roe, we have equally a case of religious believers making an assault on the separation of church and state, seeking to substitute their religious faith for our constitution’s secular definitions.
If the rhetoric of Roe is valid, it is valid here. And if it isn’t valid here, it isn’t valid.
March 1, 2010, 10:38 pmFat Man says:
“I think we all agree that the memos were wrong”
Speak for yourself white boy. Maybe people who live outside the beltway think you all are a bunch of liberal twits. Just remember KSM thinks you are kufir too.
March 1, 2010, 10:41 pmWilliam O. B'Livion says:
If, by the sixth or seventh time you still think you’re going to die, then they aren’t torturing you for information, just for fun- -because you clearly aren’t smart enough to have any information worth getting.
Seriously, this the USG. They may be inept, but if they mean to kill you, and your name isn’t Castro, they’re going to do it on the second or third try. Maybe fourth.
I’m in the “waterboarding isn’t torture” camp. It’s not something I’d approve of being done to a uniform wearing soldier reporting to a chain of command of a military of a government, former government or would be government, but for a pig f*cker like KSM?
Me? I’d staple his testicles to the side of a stand up bass and start in on The Ring of the Nibelung.
But then I’m ok with torture in some cases, and KSM is one of those cases.
March 1, 2010, 11:22 pmAnonCorrespondent says:
Hello — did you even read what I wrote? I’ll quote. I wrote: “I would not trust any assurance from an interrogator. (For one thing, they could make mistakes and kill someone.” That illustrates a particular concern: not that the interrogator means to kill you, but that they accidentally kill you, because after all, this stuff is dangerous. I believe it’s happened before: we accidentally killed someone in Iraq when we handled them a bit too roughly, and oops, they up and died on us.
Please try to read the material you are quoting more carefully before responding.
March 2, 2010, 3:40 amRicardo says:
Um, have you read the actual statute?
March 2, 2010, 6:49 am2 cents says:
You have to read CHAPTER 113C—TORTURE together with its sections.
§ 2340A. Torture. Definitions
March 2, 2010, 7:46 am(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
Reg Dunlop says:
On the first day of middle school Mr. Barbera called me into the hall and administered a variant of No. 1, Attention Grab with Locker Slam and Warning That I Know You Can Do Better.
It set me down a path that culminated in law school, and I now realize that he is a war criminal.
March 2, 2010, 8:07 amjukeboxgrad says:
Did he also keep you standing shackled and sleepless for 180 hours? Just curious.
March 2, 2010, 8:34 amFury says:
Thanks for the reference.
Was anybody subjected to dietary manipulation and for how long? I’m looking now to see if there’s more information on this.
March 2, 2010, 9:59 amFury says:
Found one (at least):
“Detainees who had been subjected to the CIA’s detention program described being subjected to the regimen for weeks in a 2007 report by the International Committee of the Red Cross. Khalid Shaikh Mohammed, the architect of the 9/11 attacks, said he was not provided “with any solid food apart from on two occasions as a reward for perceived cooperation,” and fed only Ensure. “If he refused to drink then his mouth was forced open by a guard and the Ensure was poured down his throat,” the report states. Mohammed claimed to the Red Cross that his weight dropped from 78 kilograms, or 171 pounds, to 60 kilograms, or 132 pounds, after the month-long regimen of dietary restriction. If true, that would amount to a loss of about 23 percent of Mohammed’s body weight — more than twice the amount that, according to Bradbury’s memo, should have stopped the dietary-restriction regimen”
- see here.
The Navy still uses Bread and Water and DIMRATS (Diminished Rations) for UCMJ Article 15 Non Judicial Punishment, but this cannot occur for more than three consecutive days. I checked with a retired Navy SCPO and he indicated that he had heard of people getting the three days of “Piss and Punk”, going off for a few days and then be back on Bread and Water again, but did not see this first hand on any ship at sea on which he served.
- more here.
Of course, there are differences between detainees and prisoners, but there does seem to be some similarities in that a doctor monitors the condition of both (or is supposed to), a lower calorie diet is mandated, etc.
March 2, 2010, 10:17 amjukeboxgrad says:
fury:
Judging from the pattern with other activities, there was no reason for CIA to tell OLC that CIA was doing this (or would do it) unless it was something CIA was already doing.
So it seems like a sure thing that it was done, and I think it’s also a safe bet that it was done beyond the limits that were recorded by OLC.
I hope you find something, but I don’t think you will. It seems like there aren’t too many people who care, or who think we have a right to know these things.
March 2, 2010, 10:20 amjukeboxgrad says:
Fury, we obviously cross-posted. That’s very interesting, thank you.
March 2, 2010, 10:59 amegd says:
Atkins
March 2, 2010, 11:16 amjukeboxgrad says:
egd, funny that you should pop up here. Haven’t seen you for a while. I realize you’re busy now making jokes about torture, but when you have a chance I hope you’ll finally explain why you slithered away after I demonstrated that you had made a bunch of false claims.
March 2, 2010, 11:30 am