Torture Memos

This post addresses an unpleasant subject, one I have intended to write about for months, but somehow always managed to avoid -- the Torture Memos. Not the original one by John Yoo, that claimed the President had authority to torture, any law to the contrary notwithstanding. These are the memos explaining why various acts did not violate existing laws against torture, released by Obama before the general firestorm of controversy convinced him not to let anything else from the Bush Administration be released.

They begin with August 1, 2002 memo signed by John Yoo that (apparently) got things started. Abu Zubayda had been captured, and the CIA suspected he was holding back information and wanted to use "enhanced" techniques. They asked whether such techniques would violate anti-terrorism statutes. The outcome was predetermined. Yoo dissected the law in a manner familiar to anyone who has attended law school, breaking it down into constituent parts and determining which parts are met. (For instance, to violate the torture statute, an action must (1) take place outside the US, (2) be done under color of law (3) on a person in custody, (4) inflict severe physical or mental pain or suffering, and (5) be intentional. Needless to say, conditions 1 through 3 can be safely assumed). The opinion, cool, detached and clinical, shows a stunning lack of imagination about what these techniques mean in the flesh and blood rather than on paper. Stress positions and long time standing can't possibly be painful because they will be limited by muscle fatigue. (Does he not realize that muscle fatigue, if severe, is itself painful?) Sleep deprivation can't be so bad because it has been done for 11 days in controlled experiments without long-term harm. (He obviously hasn't read memoirs of Soviet prisoners describing what prolonged sleep deprivation, for considerably shorter times than 11 days are like). And, of course, there is waterboarding. Severe pain is not distinguished from severe suffering. Prolonged mental harm is considered torture if it "profoundly disrupt[s] the senses," or involves the threat of imminent death. He acknowledges that waterboarding is an "imminent threat of death," but it doesn't cause prolonged mental harm because soldiers do it in SERE training. (Does Yoo not understand the difference between what is done at gunpoint and what is done in a training exercise?) But not to worry, even if you do end up causing severe pain or suffering or prolonged mental harm, you didn't intend to do it because I told you it was okay.

Apparently this memo was just a little too disingenuous because it was followed up by the Bradbury memo of May 10, 2005, which is somewhat more legally sophisticated than its predecessor. For instance, it acknowledges that experiencing many of these techniques as a prisoner may not be entirely the same as experiencing them as a trainee. It acknowledges that some things like muscle fatigue, waterboarding, or sleep deprivation, though not specifically painful, might be considered "suffering." But no problem. Pain, if sufficiently severe, is always torture, suffering, no matter how severe, is not torture unless sufficiently prolonged. (That clears waterboarding). And, unlike the earlier memo, it acknowledges the sleep deprivation, if sufficiently prolonged, may "profoundly disrupt the senses," (once again, try reading memoirs of Soviet prisoners to understand just how profound the disruption is, and just how unbearable). But it still approves the technique on the theory that prisoners will get over it once they sleep again. Unlike the earlier memo, which says there is no precedent on what is torture because no one has ever been prosecuted under the torture statute, the later memo admits there is precedent on what is torture when some other country does it -- and then engages in self-congratulatory preening for not being as bad as all that. (In fact it cites a case finding that prolonged sleep deprivation and waterboarding, described as "water torture," were torture, at least combined with other techniques such as beating).

But if it is legally more nuanced than its predecessor, the second memo is also more graphic. It described prisoners being kept awake for up to 180 hours by shackling them to the ceiling, which, it assures us, is not painful. (Care to try it?). Being held on one's feet for seven days causes swelling in the legs, but no problem, the swelling is not painful (ditto). It also gives a disturbingly graphic account of waterboarding. This is where it is revealed that it was done to Abu Zubayda 83 times and KSM 183 times. It also says that, unlike SERE training, which merely cut off oxygen and allowed CO2 levels to rise, waterboarding by the CIA allowed water to enter the upper respiratory tract, where it could be inhaled and cause pneumonia. Subjects also responded by swallowing as fast as they could. Some apparently drank so much water that the interrogators had to switch to saline to prevent electrolyte depletion. (Just how much water is that?) Finally, the memo offers the reassurance that a doctor will at all times be standing by to prevent harm. Somehow, though, that is not very reassuring because torturers regularly do exactly that -- to prevent the subject from being killed by accident.

Another memo follows, even more disturbing, that described the techniques as used in combination. Although the description of the techniques in combination is even more graphic and disturbing than reading about them separately, the memo naturally approves them. It engages is a certain self-congratulation for not using all the techniques at once, although all that means is that it is not possible to make a prisoner hold a stress position, slam him into the wall, hold him in a cramped box, and waterboard him all at the same time.

But perhaps most disturbing of all, even as the memo continues to insist that no "prolonged mental harm" is caused, it also explains that the purpose of the milder techniques is to "bring the detainee to 'a baseline, dependent state," 'demonstrat[ing] to the [detainee] that is has no control over basic human needs." (quotation marks and brackets in the original). The purpose of the harsher techniques is "to create a state of learned helplessness and dependence." I am reminded of nothing so much as the Star Trek episode Catspaw:

KIRK: So, are you going to wave your magic wand and destroy my mind, too?

SYLVIA: There's no damage, really, just a removal of all knowledge and will.

KIRK: You don't call that damage?

(Quoted from memory, minor errors are possible. Subject continued in the next post).