Many others here have written about the abhorrent statements made by the Obama administration about how they plan to follow up (or not follow up) on the release of the so-called torture memos. But what I haven't seen so far is an analysis of the memos themselves. Perhaps it's because they make for some very disturbing reading. They describe the torture in graphic detail. It's disgusting. But I think it's important for us to trace the tortured logic that Bybee, Bradbury, etc. used to try to justify their actions. Because their so-called logic is frighteningly clear and yet, at the same time, it is so obviously wrong, on so many levels. This has been very difficult to read, and to write, but I feel that it must be done.
I'm going to focus on just one point, which is how they "justified" the waterboarding in the memo of May 10, 2005 (46 pages) which is available from the ACLU website.
I should warn you now: this is fairly long, and very disturbing.
First, page 1, they come right out and admit:
Torture is abhorrent both to American law and values and to International norms. Consistent with these norms, the President has directed unequivocally that the United States is not to engage in torture.'
The rest of the memo is explaining why the torture (or "techniques" as they would call them) that they are discussing, is not actually torture. First they try to narrow the definition of torture as much as they can:
"specifically intend to inflict severe physical or mental pain or suffering," and Congress narrowly defined "severe mental pain or suffering" to mean "the prolonged mental harm caused by" enumerated predicate acts, including "the threat of 'Imminent death" and "procedures calculated to disrupt profoundly the senses or personality,"
And they claim (depends what the meaning of "is" is):
the terms "severe," "prolonged," "suffering" are imprecise
So, on to their arguments.
First they ask a medical/psychological professional from the CIA to give advance approval that the victim is not likely to suffer any severe physical or mental pain or suffering as a result of interrogation. They also give new detainees a thorough medical exam. Doesn't that sound nice?
Then they specify that the torture is to go on for no more than 30 days. That's also nice, and that during that time, the victim receives continuous medical and psychological monitoring. And everyone has to make sure that the victim isn't to develop "any several physical or mental pain or suffering" -- understand?
They start in with the comparisons to SERE, which is a sort of torture resistance training given to the US military. But they note that SERE trainees are obviously aware that they're not really going to be significantly harmed or subject to torture for very long. Still, SERE will come up a lot as a justification for all kinds of terrible things.
I'm going to skip over the dietary manipulation, nudity, "attention grasp", "walling", "facial hold" (keep fingers away from eyes!, face slapping, abdominal slapping (no jewellery!), cramped confinement, wall standing, stress positions, water dousing, and sleep deprivation, and just go straight to the waterboarding, which is by far the most sickening.
You might as well read their clinical description of the "technique", since I can't do it justice. Read it if you can.
13. The "waterboard." In this technique, the detainee is lying on a gurney that is inclined at an angle o f 10 to 15 degrees to the horizontal, with the detainee on his back and his head toward the lower end of the gurney. A cloth is placed over the detainee' s face, and cold water is poured on the cloth from a height of approximately 6 to 18 inches,. The wet cloth creates a barrier through which it is difficult -- or in some cases not possible -- to breathe. A single "application" of water may not last for more than 40 seconds, with the duration of an "application" measured from the moment when water -- of whatever quantity -- is first poured onto the cloth until the moment the cloth is removed from the subject's face, ,See August 19 [blacked out] letter at 1. When the time limit is reached, the pouring of water is immediately discontinued and the cloth is removed. We understand that the detainee makes an effort to defeat the technique (e.g., by twisting his head to the side and breathing out of the comer of his mouth); the interrogator may cup his hands around the detainee's nose and mouth to dam the runoff, in' which case it would not be possible for the detainee to breathe during the application of the water. In addition, you have informed me that the technique may be applied in a manner to defeat efforts by the detainee to hold his breath by for example, beginning an application of water as the detainee is exhaling. Either in the normal application, or where countermeasures are used, we understand that water may enter-and may accumulate in the detainee's mouth and nasal cavity, preventing him from breathing. In addition, you have indicated that the detainee as a countermeasure may swallow water, possibly in significant quantities. For that reason, based on advice of medical personnel, the CIA requires that saline solution be used instead of plain water to reduce the possibility of hyponatretnia (i. e., reduced concentration of sodium in the blood) if the detainee drinks the water.
We understand that the effect of the waterboard is to induce a sensation of drowning. This sensation is based on a deep rooted physiological response, Thus, the detainee experiences this sensation even if he is aware that he is not actually drowning, We are, informed that, based on extensive experience, the process is not physically painful but that it usually does cause fear and panic, The waterboard has been used many thousands of times in SERE training provided to American military personnel, though in that context it is usually limited to one or two applications of no more than 40 seconds each.
To me, this is several physical and/or mental pain and suffering. I mean, you're making the victim feel like they are drowning. Even if you believe that their is no "pain" involved, for anyone, an experience of drowning is physically suffering, and an incidence of near-drowning would certainly give most people prolonged mental harm, fear, anguish, etc. And imagine that repeated over and over again, without any control:
The waterboard may be approved for use with a given detainee only during, at most, one single 30-day period, and that during that period, the waterboard technique may be used on no more than five days. We further understand that in any 24 hour period, interrogators may use no more than two 'sessions" of the waterboard on a subject-with a "session" defined to mean the time that the detainee is strapped to the waterboard -- and that no session may last more than two hours, Moreover, during any session, the number of individual applications of water lasting 10 seconds or longer may not exceed six. As noted above, the maximum length of any application of water is 40 seconds (you have informed us that this maximum has rarely been reached). Finally, the total cumulative time of a sessions of whatever length in a 24-hour period may not exceed 12 minutes.
Just to do the math, if the standard "application" is 10 seconds. So one day could "officially" mean "drowning" 72 times. And let's not forget that 5 days are allowed per month, and that I doubt that they followed these so-called rules anyway. Even once is an act of total moral abjection.
Next there's a bit again about how careful their doctors will be making sure that the patient doesn't come to any "harm" (so they'll be ready for torture another day). And then they claim that in SERE training, no one has ever suffered any serious physical pain or prolonged mental harm. I very much doubt that the SERE training has any real comparison to the actual torture. And remember, doctors will be watching at all times!
Well now. I'm glad we got that out of the way. A very detailed description of the exact forms of torture that this memo is going to "explain away". As not really being torture. The next section goes into great detail about why, in fact they are not "really" torture. Because -- and I quote -- "torture is prohibited".
Remember that in 1990 the Senate said:
in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction. or threatened infliction of severe physical pain or suffering; (2) 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; (3) the threat of imminent death; or (4) 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.
Now, it seems to me pretty much completely obvious that waterboarding, as described, constitutes at the very least (1) the intentional infliction of several physical suffering, and (3) the threat of imminent death (from drowning). But not Bradbury. What we're going to see, from now on in this memo (and we're not even half way through yet), is a systematic attempt to wiggle out of these definitions.
To be clear, the author absolutely understands his subject. He next goes on to describe many inquisition-like torture techniques. He also cites papers on how to define levels of pain, various torture victims associations, etc. This person is no neophyte -- he has involved himself deeply in the study and understanding of torture techniques. He provides lots of examples of torture cases, things that other people have defined as torture, etc.
Then he separates physical pain and suffering from mental and suffering, and argues that to be severe, the physical distress must severe in intensity and duration, rather than "merely mild or transitory". Somehow I'm suspicious that 10 seconds is "only mild or transitory". And then he concludes that severe physical suffering must be BOTH highly intense and protracted in duration -- and that if one side goes down, the other side must go up for it to be truly "severe".
He then turns to some extreme language parsing over what exactly prolonged mental harm means. I won't bore you with the details, except that he seems to define prolonged as years.
Then we get something truly unbelievable:
The meaning of "specifically Intended."
If an individual acted in good faith, and only after reasonable investigation establishing that his conduct would not be expected to inflict severe physical or mental pain or suffering, he would not have the specific intent.
I guess this means that if the torturer didn't believe that they were torturing, then they aren't... torturing.
Bradbury concludes that it's "straightforward" to conclude that none of the above-listed "techniques" fall afoul of these definitions, except for sleep deprivation and waterboarding, which he decides need more argument, even though he already dealt with it in an older memo. Why is that?
There may be few more frightening experiences than feeling that one is unable to breathe.
First he does away with the idea that waterboarding involves severe physical pain. Well, I don't know about that, but let's just keep going. He's got physical suffering to deal with next. Now he says, that the sensation of drowning, or actual choking, can be very intense. But -- he argues -- it only lasts a few seconds! He's using his argument that you have to have both intensity and duration for it to really be torture. Of course, this is blatantly crap, even if you buy the rest of his arguments, which I don't, because 72 times a day is a hell of a lot of times to be drowning. Any normal person, and I repeat ANY NORMAL PERSON reading this would find that obviously wrong. I mean, forget about you and I, pretend you're a CIA officer looking for cover. You're hoping that Bradbury will succeed in his logic, but here, he is a fail.
The last few pages are dedicated to several mental pain or suffering. Drowning "arguably could qualify as a 'threat of imminent death'". He again brings up SERE training, which is completely incomparable because it constitutes just two short applications in a completely safe environment. But, he argues, CIA doctors say that there is no lasting mental harm. And he doesn't "believe" it is either (in his trained opinion as, one assumes, a lawyer). And finally, remember that there's doctors and psychologists watching to make sure that nothing "bad" happens.
That's the end of the memo. This person is a deeply depraved individual, to be able to study and contemplate such things, and find that he can justify them. What black pit of despair did he reach into to pull out such hideous, twisted logic, so clinical in its descriptions, so seemingly logical in its arguments, that he could justify acts so barbaric in their practice. He is worse than a man who acts out of rage or anger or fear. He is "simply doing his job" as a lawyer for his client... and opening up the yawning abyss in so doing.
These are his final words:
Please let us know if we may be of further assistance.
I have no words to describe what I think of him.