Editore"s Note
Tilting at Windmills

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April 17, 2009
By: Hilzoy

"Prolonged Mental Harm"

As I noted in my last post, the US Code defines torture as an act that (among other things) is intended to produce "severe physical or mental pain or suffering", and defines "severe mental pain or suffering" as "prolonged mental harm" resulting from one of several types of act. Naturally, then, the torture memos spend a lot of time arguing that none of the techniques they discuss will actually produce "prolonged mental harm". (Not a single one! What a surprise!)

When you read these sections, it might help to have this report from Physicians for Human Rights in the back of your mind. PHR tracked down eleven people who had been detained in Iraq and Guantanamo, and assessed their medical and psychiatric condition. They were not detained by the CIA, but many of the techniques used on them were similar. Here are the results of their psychiatric evaluations, from the Report's Executive Summary:

"With one exception, the former detainees have experienced and continue to experience severe psychological effects of torture and ill-treatment as a result of their detention in US custody. All but one feel utterly hopeless and isolated, and lack the ability to sleep well, work, or engage in normal social relationships with their families. Seven individuals disclosed having contemplated suicide either while in detention or after being released.

Most of the released detainees, to this day, live with severe anxiety, depression, and post-traumatic stress disorder, including intrusive recollections of trauma suffered in detention, hyperarousal (persistent symptoms of increased arousal, e.g., difficulty falling or staying asleep, anger, and hypervigilance), avoidance and emotional numbing behavior. PHR's clinicians determined that these symptoms were directly related to the torture and ill-treatment reported having taken place while in US custody, even after taking into account the fact that the released Iraqi former detainees are living in a war-torn environment. Amir explained, "These are the memories that I can never forget. I want to forget, but it is impossible."

For the four detainees who had experienced symptoms of depression or other mental disorders prior to detention, torture and ill-treatment by the US Personell severely exacerbated these conditions, and in one case it ignited such deep despair and dysfunction as to lead the detainee to repeated suicide attempts while at Guantanamo."

Just something to keep in mind.

Hilzoy 1:58 AM Permalink | Trackbacks | Comments (9)

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Didn't you get the memo that we are not to dwell on the past but think of the future. Future! Think of the Future!

Posted by: gregor on April 17, 2009 at 2:19 AM | PERMALINK

Of particular interest is

18 USC 2340A (c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

It seems that all of the elements of the offense are there. It seems we have jurisdiction. It also appears that we have a treaty obligation to prosecute. I hope that the administration is preparing the public for prosecutions.

Posted by: CH on April 17, 2009 at 2:20 AM | PERMALINK

40 years ago I was tortured by the mexican federal police because they assumed I knew where there were drugs or money. Those two days have tainted every hour of my life since. I cannot describe the damage this has done to me. They killed me, and the thing they let go has been less in every way than the person I should have been.

Posted by: Joseph H. Dougherty on April 17, 2009 at 4:19 AM | PERMALINK

Why oh why did Obama decide to forgive all of that? The right-wing crowd isn't going to like him anyway. Too much Kumbaya, indeed ...

Posted by: Neil B ☺ on April 17, 2009 at 8:33 AM | PERMALINK

It was vile absurdity for them to contend that techniques that were specifically designed to provoke a psychological break would have no long-term effect. I cannot believe that they actually thought the detainees would just 'get over it.' I don't think they did. I think that they didn't care about the effects of what they did, and the law required them to pretend it would be OK, so they said, essentially, 'yeah, sure, whatever. No long-term harm. Nope.' and went on about their crimes.

Posted by: biggerbox on April 17, 2009 at 10:53 AM | PERMALINK

As Hilzoy points out, the memos say nothing about sensory deprivation.

Here are some other significant distinctions

Are the memos LEGALLY reasonable? We are waiting on the OPR report for that.

Did some CIA interrogations exceed the guidelines of the memos?

This memo seemingly has nothing to do with interrogations run by non-CIA personnel. There is a lot of evidence about abuse beyond the relatively small number of CIA driven interrogations of high profile detainees. Where, when, and how were the "guidelines" for the thousands of other interrogations formulated and communicated? For example, what about the culture of interrogations in Iraq a culture decried by Matthew Alexander, exemplified by Specialists Graner and England, and officially brought to a close by the new Army Field Manual?

What about Khaled al-Masri? Is he one of the ones covered by these guidelines, or is there another set of rulings on that?

The memos says nothing about exported torture via rendition. What about Arar, for example?

Posted by: aj on April 17, 2009 at 11:08 AM | PERMALINK

Interesting note. First, the definition (18USC2340) for "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.

In the first memo (18 pages, dated 8.01.2002), each "technique" is considered in isolation, but the techniques are also considered as "a course of conduct," because:

"In further drawing upon those cases [cases under the Torture Victim Protection Act], we also have found that courts tend to take a totality-of-the-circumstances approach and consider an entire course of conduct to determine whether torture has occurred." (p. 9)

What does the OLC say about the proposed course of conduct (the 10 techniques to be used on Abu Zubaydah) presented in the memo?

"Based on the facts you have provided to us, we cannot say definitively that the entire course of conduct would cause a reasonable person to believe that he is being threatened with severe pain or suffering within the meaning of section 2340." (15-16; emphasis mine)

Some waffling on this makes sense, since the OLC also says, two paragraphs earlier, that "we find that the use of the waterboard constitutes a threat of imminent death."

But, this is the really interesting part (although, it's admittedly "in the weeds"):

"Even if the course of conduct were thought to pose a threat of physical pain or suffering, it would nevertheless--on the facts before us--not constitute a violation of Section 2340A. Not only must the course of conduct be a predicate act, but also those who use the procedure must actually cause prolonged mental harm."

So, (A) or (C) must lead to (2) for torture to have occurred. The OLC doesn't know if (A) or (C) applies to the proposed course of conduct. Yet, it is confident that if (A) or (C) applied, it wouldn't lead to (2). Their evidence?

"Based on the information that you have provided to us, indicating that no evidence exists that this course of conduct produces any prolonged mental harm, we conclude that a course of conduct using these procedures and culminating in the waterboard would not violate Section 2340A."

Let's turn back to page 5 to find this "information that you have provided to us":

"Additionally, you received a memorandum from the [redacted] which you supplied to us. [Redacted] has experience with the use of all of these procedures in a course of conduct, with the exception of the insect in the confinement box and the waterboard. This memorandum confirms that the use of these procedures has not resulted in any reported instances of prolonged mental harm."

That's not the same "course of conduct."

Posted by: Joshua Fisher on April 17, 2009 at 11:47 AM | PERMALINK

Having read through the Bybee memo, the main justification for not labeling waterboarding torture was that studies done on SERE graduates, who had undergone waterboarding as part of their survival training, indicated that any psychological effects that the procedure had on indviduals would be over in a few months. Of course if Bybee (Yoo) had done his job as an attorney, he would have realized that studies done on individuals such as Army and Navy Special Forces recruits, who underwent waterboarding as part of their training, with the understanding that it was just to prepare them for what they might face in the future and was being done to help them in the future, might have a slightly different reaction than an individual who is being held by a hostile entity and is already in fear of their life. Just sayin. Now, if Bybee (Yoo) had really done his job he would have contacted individuals who treated real survivors of torture and asked them what the long term effects of waterboarding were on individuals who had suffered that treatment as part of a campaign to extract a confession or some other information from them. Allen Keller, the director of the torture treatment center at Bellvue Hospital in NY has treated many survivors of waterboarding, and if he had been asked he would have told Bybee (Yoo) that the psychological effects are indeed longlasting.

Dr. Allen Keller, director of the Bellevue/NYU Program for Survivors of Torture, described its effects in testimony to the U.S. Senate in 2007: "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 ... 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 [post-traumatic stress disorder]." Victims struggle so hysterically that they sometimes snap their own bones. Waterboarding breaks prisoners in record time: most people, even "hardened terrorists," can't withstand it for longer than 30 or 40 seconds. No wonder it's beloved by some of history's most vicious regimes, including the Nazis and the Khmer Rouge.

People like Keller should have been consulted when the first memo was being drafted. Any boob should have known that the SERE studies would have limited value in determining what the actual effects of waterboarding were since the context in which the treatment takes place has to, inevitably, color what the responses will be.

Why Yoo is still teaching at Berkley is beyond me, but students should stop signing up for his courses. And no matter what the Obama administration decides about criminal prosecutions, the Senate should immediately investigating possible impeachment charges against Bybee. That Yoo should be allowed within a 1000 miles of impressionable young minds is an abomination that is only exceeded by the fact that Bybee is sitting in judgement on others. I suppose the Republicans would have been very happy if Bush could have nominated Torquemada to the Supreme Court.

Posted by: majun on April 17, 2009 at 11:53 AM | PERMALINK

I would like to offer the suggestion that criminal prosecution of Bush's wiretappers and "torturers" is a phobia of the left in the Democratic party and that to the extent to which it is the sole issue individuals have on their minds, it too is a fringe idea. Please don't be offended. I'm on your side but most people in the middle, myself included, do not want to tear down the house in another seige like we had during the 1990's. And it is the people in the middle who made our ascension to power possible. Arguably Bush etal were made to pay for their misdeeds by losing the last two elections and having their "permanent revolution" stopped in it tracks. That is the most effective way of ensuring that the country doesn't repeat Bush's policies. Don't let them get elected! And right now, their fringe is doing the most productive work for our side of things by discrediting themselves with the looney tune ideas they've been spouting. Let's let them have their heads while we exercise power, real power, to get done what the country needs to get done. Health care, conversion to clean energy, putting in place a realistic foreign policy and laying the foundation for a more equitable distribution of the wealth our economy produces. Those are the issues that are really important. Thank you.

Posted by: Robert Abbott on April 17, 2009 at 3:29 PM | PERMALINK



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