TORTURE MEMOS

Submitted by antarchi on May 5, 2009 - 16:41
Based on our understanding of the relevant case law and the CIA's descriptions of the interrogation program, we conclude that use of the enhanced interrogation techniques, subject to all applicable conditions, limitations, and safeguards, does not 'shock the conscience'.

From the 3rd Bradbury Memo to John Rizzo, May 2005

I have glued together some extracts from the recently released 'torture memos'. The contents are horrifying, not just in the details of the procedures they sanction, but also in the tortured logic they display. I doubt that everyone will bother to read the 124 pages of dense and other-worldly legal argument, so I have picked out some of the more Orwellian passages and placed them next to what was actually happening.

This other-world of the memos is one where torture is 'unacceptable'; so we need the legal advice to make sure we are not torturing. But it is also a world where methods of torture are elaborately excused and justified, and where - so we are told - such methods do not even 'shock the conscience'. The other-world is one where legal advisers can argue that it is perfectly acceptable to hold a person in captivity for 7 years, uncharged with any crime, nude and shackled, squeezed into a box and battered against walls, deprived of sleep and tied to a board with water poured into his lungs; and it is one where all those things, apparently, are made consistent with a world where human beings have a conscience and a moral sense.

It is this dual world that almost shocks the conscience most. Slamming people against walls is not shocking, say the memos. It doesn't even really hurt. But if, perchance, it did hurt, in some cases, you can be sure that that was not what anyone intended. And furthermore, if pain was not intended - as it wasn't, because the guards took great care not to kill (some) of the prisoners, then nor can anyone be traumatised. Or so the tortured logic goes, approximately (see this section for something approaching this argumentation).

The final shock to my conscience is that a new regime which professes to be idealistic and moralistic can think that such depraved and twisted logic and behaviour, and all its horrifying consequences, can be simply forgotten. And that the world of media commentators, in general, seem quite happy to go along with that. An astonishing example is the BBC's Peter Marshall's blog, where he a describes the release of the torture memos as 'a political blunder which the president could have easily avoided'. He goes on to say that 'Perhaps they would have emerged ... but Obama didn't need to issue the order himself.'

Manfred Nowak, the UN Special Rapporteur on torture, is quite clear about whether the memos needed releasing, and what needs to follow:

Certainly, I think if there is any kind of amnesty law, or executive order to say that nobody would be prosecuted for the crime of torture, that's a clear violation of the obligation under the Convention Against Torture

Most of the samples below are taken from the first of the memos, the so-called 'Bybee Memo', written and signed off in August 2002 by Jay Bybee, who is now a federal judge. Where material is taken from other memos, this is indicated. The emphasis is all mine.


The 'techniques'

You have asked for this Office's views on whether certain proposed conduct would violate the prohibition against torture found at Section 2340A of title 18 of the United States Code1. You have asked for this advice in the course of conducting interrogations of Abu Zubaydah.

In this [increased pressure phase] you would like to employ ten techniques that you believe will dislocate his expectations regarding the treatment he believes he will receive and encourage him to disclose the crucial information mentioned above. These ten techniques are:

We understand that a detainee undergoing sleep deprivation is generally fed by hand by CIA personnel so that he need not be unshackled; however, '[i]f progress is made during interrogation, the interrogators may unshackle the detainee and let him feed himself as a positive incentive'. If the detainee is clothed, he wears an adult diaper under his pants. Detainees subject to sleep deprivation who are also subject to nudity as a separate interrogation technique will at times be nude and wearing a diaper. From the 1st Bradbury Memo

1) attention grasp

2) walling

3) facial hold

4) facial slap (insult slap)

5) cramped confinement

6) wall standing

7) stress positions

8) sleep deprivation

9) insects placed in a confinement box, and

10) the waterboard.

In the Memo to John Rizzo, May 10 2005, the following 4 methods were added to the list of 'techniques' to be considered:

Dietary manipulation.

and before this all begins...
before being flown to the site of interrogation, a detainee is given a medical examination. He then is 'securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods' during the flight... Upon arrival at the site, the detainee 'finds himself in complete control of American' ... His head and face are shaved; his physical condition is documented through photographs taken while he is nude; and he is given medical and psychological interviews to assess his condition and to make sure there are no contraindications to the use of any particular interrogation techniques.

The recommended minimum calorie intake is 1500 kcal/day, and in no event is the detainee allowed to receive less than 1000 kcal/day.

Nudity.

This technique is used to cause psychological discomfort, particularly if a detainee, for cultural or other reasons, is especially modest. When the technique is employed, clothing can be provided as an instant reward for cooperation.

Abdominal slap

The interrogator slaps the detainee in the detainee's abdomen

Water dousing.

Cold water is poured on a detainee, either from a container or from a hose without a nozzle.

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The memos go on to consider in some detail the procedures involved in each 'technique'. Here are some of the more other-worldly extracts:


Walling

Mr Abu Zubaydah commented that when the collar was first used on him in his third place of detention, he was slammed directly against a hard concrete wall. He was then placed in a tall box for several hours. After he was taken out of the box he noticed that a sheet of plywood had been placed against the wall. The collar was then used to slam him against the plywood sheet. More Details on U.S. Interrogators Banging Prisoners' Heads Against Walls

"on a daily basis during the first two weeks a collar was looped around my neck and then used to slam me against the walls of the interrogation room. It was also placed around my neck when being taken out of my cell for interrogation and was used to lead me along the corridor. It was also used to slam me against the walls of the corridor during such movements”.
Bin Attash in the ICRC report

... For walling, a flexible false wall will be constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual's shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a collar effect to help prevent whiplash... The false wall is in part constructed to create a loud sound when the individual hits it, which will further shock or surprise in the individual...

Walling 'is one of the most effective interrogation techniques because it wears down the [detainee] physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the [detainee] knows he is about to be walled again'. A detainee 'may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question,' and 'will be walled multiple times' during a session designed to be intense. Walling cannot practically be used at the same time as other interrogation techniques. (From the 3rd Bradbury memo)

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Stress positions

I was stripped naked and remained naked throughout the month of July. Also during this time I was again kept for several days in a standing position with my arms above my head and fixed with handcuffs and a chain to a metal ring in the ceiling. My lower leg was examined on a daily basis by a doctor using a tape measure for signs of swelling. I do not remember for exactly how many days I was kept standing, but I think it was about ten days The doctor finally ordered that I be allowed to sit on the floor, I was still kept with my arms extended above my head. This was very painful on my back. During the standing I was made to wear a diaper. However, on some occasions the diaper was not replaced and so I had to urinate and defecate over myself. I was washed down with cold water everyday.

Walid bin Attash, from the ICRC report 'On the Treatment of 14 High Value Detainees in CIA custody' (feb. 2007)

Mr Hambali alleged that, after a period of the same form of prolonged stress standing, a health person intervened to prevent further use of the method, but told him that “I look after your body only because we need you for information”.
From the same ICRC report

... the statute covers a category of 'severe physical ... suffering' distinct from 'severe physical pain,' this category encompasses only 'physical distress that is 'severe' considering its intensity and duration or persistence, rather than merely mild or transitory.' Severe physical suffering... we have concluded, means a state or condition of physical distress, misery, affliction, or torment, usually involving physical pain, that is both extreme in intensity and significantly protracted in duration or persistent over time.... To amount to torture, conduct must be 'sufficiently extreme and outrageous to warrant the universal condemnation that the term 'torture' both connotes and invokes'...

We conclude that the authorized use of stress positions such as those described in Interrogation Memorandum, if employed by adequately trained interrogators, could not reasonably be considered specifically intended to cause severe physical or mental pain or suffering...2

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Putting people into boxes

Cramped confinement involves the placement of the individual in a confined space, the dimensions of which restrict the individual' movement. The confined space is usually dark.

The use of the boxes [does not] threaten Zubaydah with severe physical pain or suffering. While additional time spent in the boxes may be threatened, their use is not accompanied by any express threats of severe physical pain or suffering. Like the stress positions and walling, placement in the boxes is physically uncomfortable but any such discomfort does not rise to the level of severe physical pain or suffering. Accordingly, a reasonable person in the subject's position would not infer from the use of this technique that severe physical pain is the next step in his interrogator's treatment of him3 4

Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow. Measuring perhaps in area 1m x 0.75m and 2m in height. The other was shorter, perhaps only 1m in height. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face. As I was still shackled, the pushing and pulling around meant that the shackles pulled painfully on my ankles. I was then put into the tall back box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside. It had a bucket inside to use as a toilet and had water to drink provided in a bottle. They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. Abu Zubaydah
From the ICRC report The Torture of Abu Zubaydeh

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Room 101

Phobia: An unreasonable sort of fear that can cause avoidance and panic.

You have informed us that [Zubaydah] appears to have a fear of insects...

In addition to using the confinement boxes alone, you also would like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. If you do so, to ensure that you are outside the predicate act requirement5, you must inform him that the insects will not have a sting that would produce death or Severe pain. If, however, you were to place the insect in the box without informing him that you were doing so, then, in order to not commit a predicate act, you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severed pain or suffering or even cause his death.[redacted] So long as you take either of the approaches we have described, the insect's placement in the box would not constitute a threat of severe physical pain or suffering to a reasonable person6 in his position. An individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box. Further, you have informed us that you are not aware that Zubaydah has any allergies to insects, and you have not informed us of any other factors that would cause a reasonable person in that same situation to believe that an unknown insect would cause him severe physical pain or death. Thus we conclude that the placement of the insect in the confinement box with Zubaydah would not constitute a predicate act.

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The waterboard

You may have read by now the official lie about this treatment, which is that it “simulates” the feeling of drowning. This is not the case. You feel that you are drowning because you are drowning—or, rather, being drowned, albeit slowly and under controlled conditions and at the mercy (or otherwise) of those who are applying the pressure.

...if waterboarding does not constitute torture, then there is no such thing as torture.

Christopher Hitchens, who tried it out for himself.

You have informed us that 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 2 hours. Moreover, during any session, the number of individual applications of water lasting 10 seconds or longer may not exceed six. The maximum length of any application of water is 40 seconds... Finally, the total cumulative time of all applications of whatever length in a 24 period may not exceed 12 minutes7.

The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view inflict "severe pain or suffering." Even if one were to parse the statute more finely to attempt to treat "suffering" as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.

According to the May 30, 2005 Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 and Abu Zubaydah was waterboarded 83 times in August 2002. From Emptywheel

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Would you believe it...?

Although the waterboard constitutes a threat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering... We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g. mental harm lasting months or years. See id. Prolonged mental harm is not simply the stress experienced in, for example, an interrogation by state police. .. Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard. Indeed, you have advised us that the relief is almost immediate when the cloth is removed from the nose and mouth. In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture within the meaning of the statute.

Dr. Allen Keller, the director of the Bellevue/N.Y.U. Program for Survivors of Torture, has treated "a number of people" who had been subjected to forms of near-asphyxiation, including waterboarding. An interview for The New Yorker states, "[He] argued that it was indeed torture, 'Some victims were still traumatized years later', he said. One patient couldn't take showers, and panicked when it rained. 'The fear of being killed is a terrifying experience', he said". Keller also stated in his testimony before the Senate that "water-boarding or mock drowning, where a prisoner is bound to an inclined board and water is poured over their face, inducing a terrifying fear of drowning clearly can result in immediate and long-term health consequences. As the prisoner gags and chokes, the terror of imminent death is pervasive, with all of the physiologic and psychological responses expected, including an intense stress response, manifested by tachycardia (rapid heart beat) and gasping for breath. There is a real risk of death from actually drowning or suffering a heart attack or damage to the lungs from inhalation of water. Long term effects include panic attacks, depression and PTSD. I remind you of the patient I described earlier who would panic and gasp for breath whenever it rained even years after his abuse".
Statement by Allen S. Keller at the Hearing on U.S. Interrogation Policy and Executive Order 13440

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Putting it all together

The 2nd Bradbury Memo considers whether, even though not one of the considered techniques amounts to torture on its own(!), perhaps if you do them all on top of one another you might be getting closer to the mark...


A Prototypical Interrogation

contd. from box above...
When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck.

After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress. I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me. I remained in the box for several hours, maybe overnight. I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.

In a prototypical interrogation, the detainee begins his first interrogation session stripped of his clothes, shackled, and hooded, with the walling collar over his head and around his neck... As soon as the detainee does anything inconsistent with the interrogators' instructions, the interrogators use an insult slap of abdominal slap. They employ walling if it becomes clear that the detainee is not cooperating in the interrogation. This sequence 'may continue for several more iterations as the interrogators continue to measure the [detainee's] resistance posture and apply a negative consequence to [his] resistance efforts.' The interrogators and security officers then put the detainee into position for standing sleep deprivation, begin dietary manipulation through a liquid diet, and keep the detainee nude (except for a diaper). The first interrogation session, which could have lasted from 30 minutes to several hours, would then be at an end...

The interval between sessions could be as short as an hour or as long as 24 hours. At the start of the second session, the detainee is released from the position for standing sleep deprivation, is hooded, and is positioned against the walling wall, with the walling collar over his head and around his neck. Even before removing the hood, the interrogators use the attention grasp to startle the detainee. The interrogators take off the hood and begin questioning. If the detainee does not give appropriate answers to the first questions, the interrogators use an insult slap or abdominal slap. They employ walling if they determine that the detainee 'is intent on maintaining his resistance posture.' This sequence 'may continue for multiple iterations as the interrogators continue to measure the [detainee's] resistance posture'. The interrogators then increase the pressure on the detainee by using a hose to douse the detainee with water for several minutes. They stop and start the dousing as they continue the interrogation. They then end the session by placing the detainee into the same circumstances as at the end of the first session: the detainee is in this standing position for sleep deprivation, is nude (except for a diaper), and is subjected to dietary manipulation. Once again, the session could have lasted from 30 minutes to several hours.

Again, if the interrogation team determines there is a need to continue, and if the medical and psychological personnel find no contraindications, a third session may follow. The session begins with the detainee positioned as at the beginning of the second. If the detainee continues to resist, the interrogators continue to use walling and water dousing. The corrective techniques – the insult slap, the abdominal slap, the facial hold , the attention grasp – 'may be used several times during this session based on the responses and actions of the [detainee].' The interrogators integrate stress positions and wall standing into the session. Furthermore, '[i]ntense questioning and walling would be repeated multiple times. Interrogators 'use one technique to support another.' For example, they threaten the use of walling unless the detainee holds a stress position, thus inducing the detainee to remain in the position longer than he otherwise would. At the end of the session, the interrogators and security personnel place the detainee into the same circumstances as at the end of the first two sessions, with the detainee subject to sleep deprivation, nudity, and dietary manipulation.

... The entire process in this 'prototypical interrogation' may last 30 days. If additional time is required and a new approval is obtained from headquarters, interrogation may go longer than 30 days. Nevertheless, 'on average, the actual use of interrogation techniques covers a period of three to sever days, but can vary upwards to fifteen days based on the resilience of the [detainee].' (From Bradbury 3 memo)

Section 2340 defines severe mental pain or suffering as 'the prolonged mental harm caused by or resulting from' acts. 18 U.S.C S 2340(2). Those predicate acts are (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 Of either procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that any of the preceding acts will be done to another person.

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Is it torture?

Article 1

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity...

From the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

What did the International Red Cross think?

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture.

The ICRC recommends the following:
...that the US authorities investigate all allegations of ill-treatment and take steps to punish the perpetrators, where appropriate, and to prevent such abuses from happening again.

From the ICRC report

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P.S. We didn't mean to hurt you

This section is truly Orwellian. The authors of the memos had managed to show - to their own satisfaction, and that of their political masters - that the techniques being considered could not be said to cause severe physical pain and suffering. But what about the mental pain that the methods may have caused?

Start with the specification in USC 2340(2), which outlines the 4 'predicate acts', any one of which constitutes torture, if its effect on a detainee is 'severe mental pain or suffering':

(2) “severe mental pain or suffering” means 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;

B), C), and D) could (apparently) be ruled out fairly easily. But Bradbury goes through extraordinary contortions to deal with A).

To violate the statute, an individual must have the specific intent to inflict severe pain or suffering... As we previously opined, to have the required specific intent, an individual must expressly intend to cause such severe pain or suffering.... We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent... A defendant acts in good faith when he has an honest belief that his actions will not result in severe pain or suffering.

Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering. The objective of these techniques is not to cause severe physical pain.

...As described above, it appears you have conducted an extensive inquiry to ascertain what impact if any, these procedures individually and as a course of conduct would have on Zubaydah... Based on this inquiry, you believe that the use of the procedures, including the waterboard, and as a course of conduct would not result in prolonged mental harm. Reliance on this information about Zubaydah and about the effect of the use of these techniques more generally demonstrates the presence of a good faith belief that no prolonged mental harm will result from using these methods in the interrogation of Zubaydah. Moreover, we think that this represents not only an honest belief but also a reasonable belief based on the information that you have supplied to us. Thus, we believe that the specific intent to inflict prolonged mental is not present, and consequently, there is no specific intent to inflict severe mental pain or suffering. Accordingly, we conclude that on the facts in this case the use of these methods separately or a course of conduct would not violate Section 2340A.

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The contemporary conscience

Given that the CIA interrogation program is carefully limited to further the Government's paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot 'be said to shock the contemporary conscience'.

From the 3rd Bradbury Memo to John Rizzo, May 2005

  • 1. See http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00002340----000-.html
  • 2. Both paragraphs from the 2nd Bradbury memo
  • 3. This paragraph from Bradbury 3
  • 4. What about such 'reasonable people' as those interviewed by the ICRC in Guantanamo in 2007?
    Nine of the fourteen alleged that they had been subjected to threats of ill-treatment. Seven of these cases took the form of a verbal threat, including of ill-treatment in the form of “water boarding”, electric shocks, infection with HIV, sodomy of the detainee and the arrest and rape of his family, torture, being brought close to death, and of an interrogation process to which “no rules applied”. The other two threats were made by visual means, namely of ill-treatment which would make the detainee resemble a co-detainee (through use of a photo of a co-detainee showing physical signs of ill-treatment), and of a return to past methods of ill-treatment (through displaying during interrogation a neck collar previously used for ill-treatment). In all cases, the threats were made to induce cooperation with the interrogation.

  • 5. The 'predicate acts' apply to severe mental suffering. Section 2340 (2) specifies that

    “severe mental pain or suffering” means the 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 Of either procedures calculated to disrupt profoundly the senses or the personality;
    3) the threat of imminent death; or
    4) the threat that any of the preceding acts will be done to another person

  • 6. More on reasonableness: was Zubaydah thought to be reasonable? The following is from Ron Suskind's One Percent Doctrine:
    Meanwhile, Dan Coleman and other knowledgeable members of the tribe of al Qaeda hunters at CIA were reading Zubaydah's top secret diary and shaking their heads.

    "This guy is insane, certifiable, split personality," Coleman told a top official at FBI after a few days reviewing the Zubaydah haul.

  • 7. Paragraph from Bradbury 2