Reading the OLC memos justifying "enhanced interrogation techniques" has revealed a frightening picture of our Government practicing torture. Below I focus on three of the OLC memos from the perspective of a physician. The first two were written in 2002, when the the OLC defined torture and the CIA outlined the protocols they would be using. The second is the 46 page memo of 5/10/2005, written after these techniques had been applied and after there had been serious dissent over their use within the government.
Close reading of these memos shows that:
- The CIA misled the OLC about the harmlessness of waterboarding.
- The waterboarding actually used on detainees fit the 2002 OLC definition of torture.
- When the 2002 memos were rescinded, the OLC simply redefined torture to allow the waterboarding that fit the previous definition of torture.
The August 1, 2002 "2002 Techniques Memo"
This memo was written by John Yoo and signed by Jay Bybee. It provides cover for CIA enhanced interrogation techniques. It was released on 4/16/09 in response to an ACLU FOI request. Based upon information presented to the OLC by the CIA's John Rizzo, waterboarding was described as harmless:
As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning -- even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm.
In keeping with the premise that waterboarding was safe, and defending why the waterboard is not torture, Bybee wrote:
As we explained in the Section 2340A Memorandum, "pain and suffering" as used in Section 2340 is best understood as a single concept, not distinct concepts of "pain" as distinguished from "suffering".... The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict "severe pain and suffering"."
Thus, the central defense of waterboarding was that it did not cause actual physical harm. It is somewhat unclear, if the waterboard is so safe, why the waterboard would require "monitor[ing] by personnel with medical training and extensive SERE school experience with this procedure who will ensure the subject’s mental and physical safety." Nonetheless, the "2002 Techniques Memo" central tenet was that waterboarding is HARMLESS.
The August 1, 2002 "2002 Torture Definition Memo" from Jay Bybee to Alberto Gonzales
This memo was written by John Yoo under Jay Bybee's name to define torture for the administration, and was leaked to the press in 2004. The memo surprisingly utilized medical terminology to define torture:
Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture 'severe pain' must rise to a similarly high level -- the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."
Thus Yoo, under the declaration that waterboarding is harmless defined torture as an insult that was "likely to result in permanent and serious physical damage in the absence of immediate medical treatment." OLC had made up a definition of torture to permit "safe waterboarding".
The May 10, 2005 "2005 Bradbury Memo"
This memo was written by Stephen Bradbury. It provides revised analysis of CIA enhanced interrogation techniques. It was released on 4/16/09 in response to an ACLU FOI request.
Importantly, this memo replaced the 2002 Yoo/Bybee memos, which were withdrawn by Jack Goldsmith following the leak of the "2002 Torture Definition Memo" in May 2004. We are now learning that there was serious debate about the morality and utility of waterboarding within the intelligence services and the State Department, and an internal CIA probe by the inspector general raised numerous questions about the "enhanced interrogation techniques". Specifically, it is clear that waterboarding was anything but harmless. As cited in the "2005 Bradbury memo", the CIA inspector general noted that the original approval of waterboarding was based upon inadequate safety evaluation by qualified medical officers:
See IG Report at 21 n26 ("[The CIA Office of Medical Services (OMS)] was neither consulted nor involved in the analysis of the risk and benefits of [enhanced interrogation techniques], nor provided with the OTS report cited in the OLC opinion [the Interrogation Memorandum]."). Since that time, based on comments from OMS, additional constraints have been imposed on the use of the techniques.
Evaluating the new constraints placed on waterboarding in the "2005 Bradbury memo" reveals a MAJOR change. "Harmless" waterboarding now required that a physician be present in the room in which the detainee is waterboarded to prevent death. Furthermore, they now included a tracheotomy kit in the room where "harmless" waterboarding was conducted:
...a detainee could suffer spasms of the larynx that would prevent him from breathing even when the application of water is stopped and the detainee is returned to an upright position. In the event of such spasms, a qualified physician would immediately intervene to address the problem, and, if necessary, the intervening physician would perform a tracheotomy.... we are informed that the necessary emergency medical equipment is always present- although not visible to the detainee- during any application of the waterboard.
A tracheotomy is a surgery in which a physician cuts into a patient's neck, slicing through the skin and into the airway (trachea, see below). Then a tube is inserted into the hole to provide an airway to the lungs.
Thus after waterboarding Zubaydah and KSM 266 times by March 2003, it apparently became clear to the CIA that in the hands of the interrogators working for the CIA, waterboarding was not the "harmless" procedure it was originally described to be. In fact, waterboarding was considered to be so dangerous by the CIA's own doctors, that they mandated a physician with an emergency tracheotomy kit be in the room while the waterboarding took place.
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Failure to perform a tracheotomy in the presence of airway-obstructing laryngospasm can result in loss of oxygen severe enough to cause brain damage and death. The memos do not indicate whether or not any of the waterboarded detainees required a tracheotomy. However, a heavily censored footnote on page 15 of the "2005 Bradbury Memo" discusses what appears to be a near-death episode that must have happened with Zubaydah or Khalid Sheik Mohammed, the only detainees known to undergo "extensive waterboarding" by the CIA. This event may be the basis of the change in waterboarding protocols:
In our limited experience, extensive use of the waterboard can introduce new risks. Most seriously, for reasons of physical fatigue or psychological resignation, the subject may simply give up, allowing excessive filling of the airways and loss of consciousness. An unresponsive subject should be righted immediately and the interrogator should deliver a sub-xyphoid thrust to expel the water. If this fails to restore normal breathing, aggressive medical intervention is required. Any subject who has reached this degree of compromise is not [censored hereafter].
They changed the torture definition to stop defining themselves as torturers
The "2002 Torture Definition Memo" to Gonzales generated what turned out to be a troublesome definition of torture. Troublesome because it was clear by March 2003 that the actual practice of waterboarding by the CIA required a physician and tracheotomy kit to prevent "death, organ failure, or serious impairment of body functions." The 2002 torture definition clearly defined AS TORTURE the actual practice of waterboarding detailed in the IG report and later memos. But rather than stop torturing people, they abandoned their original definition of torture as including an act that causes "permanent and serious physical damage in the absence of immediate medical treatment." And despite a footnote in the "2005 Bradbury Memo" indicating that "extensive waterboarding" can cause a subject to "simply give up, allowing excessive filling of the airways and loss of consciousness [and thus death without medical intervention]", this "2005 Bradbury Memo" incredibly finds that waterboarding does not result in severe mental pain or suffering.
An aside on Jack Goldsmith
In June, 2004, following the leak of the "2002 Torture Definition Memo" to the press and in the wake of the Abu Ghraib scandal, OLC head Jack Goldsmith withdrew both the 2002 Yoo/Bybee Memos without authoring replacement memos. Whereas many people have touted Jack Goldsmith's withdrawal of the Yoo Torture Memos as "principled", it is clear that the operative "2002 Torture Definition Memo" he withdrew in June 2004 also happened to inconveniently define CIA waterboarders as torturers. Although he resigned immediately following the memo withdrawal to "make sure his decision stuck" his silence allowed the OLC to quietly redefine torture and march right along with the waterboarding program.
Conclusion
At this point it is fairly obvious that the lawyers authoring the torture memos were charged with finding legal loopholes to torture statutes for the "enhanced interrogation techniques". Waterboarding was originally described as harmless, resulting in a definition of torture crafted around this concept. When the CIA's own experience indicated that waterboarding was not harmless, and indeed fit the earlier "good-faith" definition of torture, they simply abandoned the "2002 Torture Definition Memo" concept of severe pain and harm, and now required physicians with tracheotomy kits to be present in the waterboarding chamber to reduce the death risk.
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The "2005 Bradbury Memo" indicates that the prevailing thought following the OLC's redefinition of torture was that if a doctor was present to resuscitate anyone killed by an interrogator, then the CIA was legally innocent of murder or torture. By this logic, it may have been acceptable to cut off fingers and toes as long as there was an orthopedic surgeon present to reattach them. Following the sequence of memos, it is evident that in addition to bad-faith misrepresentation of the effectiveness of waterboarding in the memos, the memos reveal bad-faith misrepresentation of the safety of waterboarding and arbitrary redefinition of torture to permit whatever the CIA wanted to do. In short, it appears that in these OLC memos there was no "good-faith" effort to define torture and avoid it.
Cited Memos (PDFs):
8/1/02 ""2002 Techniques Memo""-Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee
8/1/02 ""2002 Torture Definition Memo"" Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency, From Jay S. Bybee
5/10/05 ""2005 Bradbury Memo"" Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency
