Torture Memos, Continued

The memos describing torture authorized almost perfectly match the accounts given by the detainees to the Red Cross. At the time the Red Cross report first came out, there were questions as to its accuracy, but the parallels make amply clear that it is accurate.

The third memo authorizes a general process of 30 days, with the option to renew. The Red Cross accounts describe processes of a month or two.

The second memo authorizes sleep deprivation by chaining to the ceiling for up to 180hours (seven and a half days). The Red Cross report describes chaining to the ceiling for up to seven days.

The first memo authorizes placing Abu Zubayda in a cramped box, although he was wounded. Abu Zubayda described being placed in a cramped box, although wounded.

The memos authorize slamming subjects against a false wall, with a rolled towel around their necks to prevent whiplash. The Red Cross report describes subjects slammed against a wall with rolled towels against their necks to prevent whiplash. Zubayda mentions that the first time he was slammed against a solid wall, but afterward a plywood false wall was placed to soften the impact.

The memos state, and the Red Cross reports confirm, that only the three highest value detainees were waterboarded.

And so forth.

But in the end, this fine parsing over what is and is not torture might not be so bad if one keeps in mind that the Convention Against Torture (Article 16) requires each member to "prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture." In other words, the distinction between torture and "merely" "cruel, inhumane or degrading treatment" is hard to make, but it is not in any event the distinction between lawful and unlawful, but only between a more and serious offense. That is what makes the final memo particularly appalling. One can argue over whether the CIA black sites cross over the line into torture or are merely "cruel inhumane and degrading," but the final memo argues that they are not cruel, inhumane or degrading, either.

First, the memo points out that since the black sites are other countries, they are not in "territory under [US] jurisdiction." The memo thus interprets the treaty as allowing members to evade this provision by taking their prisoners into each other's territory and engaging in cruel, inhumane and degrading conduct there. The memo further argues that, in ratifying the treaty, the Senate said it interpreted "cruel, inhumane and degrading" as equivalent to "cruel and unusual" under the Constitution. Since the Constitution does not apply to non-citizens outside the US, Article 16 allows us to be as cruel, inhumane and degrading as we want so long as it stops just short of torture and happens to non-citizens on foreign soil. Finally, the memo "enhanced interrogation" is being done to people who have not been convicted of a crime, and is not meant as punishment, but only to make them talk, government interest in fighting terrorism will outweigh any harm done. The memo then argues in detail its great care not to harm detainees by never dousing them with water cold enough to cause hypothermia, not allowing them to hang by the wrists when suspended from the ceiling, waterboarding with saline so they don't get pneumonia or electrolyte depletion, and other such acts of tender solicitude.

The worst part is, at least some Supreme Court justices these days would probably buy this argument. Antonin Scalia sees it as positively an affront to suggest that non-citizens outside the US have any rights. He has also expressed the general opinion that the ban on "cruel and unusual punishment" applies only to people who have been convicted of a crime. Before then, it is open season. And in the odious case of Martinez v. Chavez, the Supreme Court effectively approved the use of torture to extort a confession so long as the police ultimately conclude the subject was innocent and do not prosecute him. However, I am confident that Justice Kennedy would disagree, and that such a viewpoint would be rejected by today's Supreme Court on a vote of 5 to 4.

The Final "torture memo" released was the CIA Inspector General's Report. It adds relatively little, partly because it heavily quotes the original Yoo memo, partly because the three later memos quote heavily from it, but mostly because whole pages are blacked out. It makes the point that only some of the high value detainees were subject to "enhanced interrogation techniques," but that "unenhanced" techniques included forcible shaving, stripping, hooding, isolation, shackling upright, and sleep deprivation and diapering for up to 72 hours. It discusses the necessity of torture for gaining information, the difficulty in knowing whether a detainee is withholding or not, (Abu Zubayda continued to be waterboarded on orders from above long after his immediate interrogators believed he had told all he knew), the damage torture might have to America's moral standing, and fears of getting caught.

The most significant part of the Inspector General's Report is probably pages 85-89, in which they attempt to assess the effectiveness of their techniques. They conclude that torture did, in fact, yield valuable information, but they cannot determine which techniques were most effective since all were used at once. Page 87 identifies individuals, and page 88 plots that the subjects revealed under torture, although they did not uncover any evidence these plots were imminent.

In other words, no true ticking bomb. They cannot say that these plots could not have been discovered by other means, or even that they would have occurred at all. And, for what it is worth, FBI Agent Ali Soufan disputes this account, attributing much of the information the CIA says it obtained by torture in fact came from other sources. Not having any inside information, I cannot presume to judge.

I am well aware that many people, especially in light of the most recent attack, will say so what. The CIA black sites housed only a handful of high-value detainees, all high ranking Al-Qaeda members, all with important information, and all vile and evil terrorists who deserved what they go. And perhaps if those few had been the only ones tortured, one might dismiss the whole episode as a detail, a regretable incident that may or may not have been necessary. But what all too many people today are forgetting is that torture was not limited to a handful of high value Al-Qaeda detainees. The Senate Armed Services Committee has extensively documented that torture by the military was extensive, systematic, extending far beyond high level detainees or even low-level insurgents, and ordered from the very top. Any serious discussion of torture under the Bush Administration has to take into account that it was a regular, planned military policy -- and is probably still going on, albeit without official approval, to this day.