Editore"s Note
Tilting at Windmills

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April 18, 2009
By: Hilzoy

More Things That Are Missing

A couple of other things that are missing from the torture memos:

First, the memos cite various legal precedents for the definition of torture. They are particularly fond of Mehinovic v. Vuckovic, which involved "a course of conduct that included severe beatings to the genitals, head, and other parts of the body with metal pipes and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of 'Russian Roulette'." (p. 24; the details of this case are repeated on four separate occasions in this memo alone, like an incantation.)

Isn't it strange, then, that not a single one of the cases in which the United States has prosecuted people for waterboarding turns up in these memos? You'd think they might be apposite. Oddly enough, though, Steven Bradbury didn't think to include them.

Second: As I noted last night, under the US Code, an important issue in determining whether something counts as producing "severe mental pain or suffering" is whether it produces "prolonged mental harm". In discussing this question, especially with regard to sleep deprivation and waterboarding, Steven Bradbury spends a lot of time discussing the scientific literature on these topics.

And yet, once you think about it, he had a much better source of information available to him. These memos were written in May, 2005. The CIA had been using these "methods of interrogation" for nearly three years. Moreover, the memos fall all over themselves describing the repeated psychiatric evaluations that detainees are given:

"Prior to interrogation, each detainee is evaluated by medical and psychological professionals from the CIA's Office of Medical Services ("OMS") to ensure that he is not likely to suffer any severe physical or mental pain or suffering as a result of interrogation." (p. 4)

Bradbury then quotes the OMS' guidelines:

"[T]echnique-specific advance approval is required for all "enhanced" measures, and is 'conditional on on-site medical and psychological personnel confirming from direct detainee examination that the enhanced technique(s) is not expected to produce "physical or mental pain or suffering"'. As a practical matter, the detainee's physical condition must be such that these interventions will not have lasting effect, and his psychological state strong enough that no severe psychological harm will result." (p. 4)

Moreover:

"Medical and psychological personnel are on-scene throughout (and, as detailed below, physically present or otherwise observing during the application of many techniques, including all techniques involving physical contact with detainees), and "[d]aily physical and psychological evaluations are continued throughout the period of [enhanced interrogation technique] use." (p. 5; square brackets in the original.)


With all those psychological workups having been conducted on CIA detainees over a period of nearly three years, one might think that the CIA, and specifically its Office of Medical Services, would have lots of information on whether or not the techniques under discussion actually did produce any "prolonged mental harm." And yet, strange to say, the memos don't mention any evidence at all about the effects of these techniques on CIA detainees*.

It's pretty strange that the CIA had all that data about the psychiatric effects of its interrogation techniques ready to hand, and yet no one mentions it.

Or then again, maybe not.

* This is particularly striking in the case of Abu Zubaydah, whose psychiatric condition is described at considerable length in the August 1, 2002 memo. As Emptywheel has noted, the description of Abu Zubaydah in the memos is completely different from the FBI sources quoted by Ron Suskind -- they called him "certifiable". But let's pretend we don't know that, and ask: given the 2002 memo's extensive description of Abu Zubaydah, and given that he was the detainee on whom these techniques had been used the longest, wouldn't it be natural for Bradbury to explain what dazzling psychological health he was enjoying several years after the CIA had begun using "enhanced techniques" on him?

On reflection, though, maybe using Abu Zubaydah as a poster child for the benignity of the CIA's methods would not have been such a good idea:

"The sadistic treatment of Abu Zubayda also seems to have affected him psychologically in bizarre ways. Two sources said that he became sexually obsessive, masturbating so much his captors feared he would injure himself. One described him as acting "like a monkey at the zoo." A physician was called in for consultation -- one of many instances in which health professionals have played truly disturbing roles in this program."

Hilzoy 2:21 AM Permalink | Trackbacks | Comments (19)

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Comments

So the GOP supports international law ONLY when it supports their opinions. Interesting.

Posted by: Chris on April 18, 2009 at 4:26 AM | PERMALINK

Just wanted to say HI. I found your blog a few days ago and have been reading it over the past few days.

Posted by: runescape gold on April 18, 2009 at 4:41 AM | PERMALINK

How many times have we heard about this or that alleged terrorist behaving erratically at his trial, fighting with his own lawyers, being disruptive and so on.

Is it not possible that we have driven these guys insane?

Take one hundred god fearing tax paying US citizens (atheists and tax cheats rejoice) and lock them up for seven years. Keep them in an eight by eight cell. Tell them you think they are a terrorist but never give them a chance to prove you wrong. NOTE: being presumed guilty is SO FRENCH! Stay locked up for seven years. Don't torture anyone or even mildly chastise them. I guarantee you some of those people will go insane.

Posted by: coltergeist on April 18, 2009 at 5:44 AM | PERMALINK

The great mystery to me is if torture doesn't work, why do we do it? These memos show that a lot of dispassionate or scholastic work was done to justify it. Is it merely a matter of career obsessed lawyers, doctors and interrogators bending over backwards to please a sadistic boss? I don't find that a very compelling argument, but I think it's important to find out.

Posted by: Danp on April 18, 2009 at 6:13 AM | PERMALINK

Swanson at After Downing Street has a post about possible collusion between the Spanish government and the Obama administration to stop any prosecutions for war crimes/torture.

The Spanish AG has told prosecutors in Spain to not prosecute the eight Bush lawyers that a Spanish judge wants to try for war crimes...saying that only individuals who actually committed acts of torture are liable.

At the same time, the Obama administration releases four more Bush era torture memos, but also issues a statement that Obama's Justice Department (and U.S. Attorney General Eric Holder) will neither investigate further nor prosecute any low-level federal employees (and presumably any private contractors) who tortured detainees...leading some to believe that Obama is leaving open the door to investigating and prosecuting top-level Bush officials, including the eight Bush lawyers a Spanish judge wants to prosecute.

Gee, not only does this criminal obstruction of justice continue here in the U.S., but it appears that the Obama administration (continuing the cover-up policy of the criminal Bush administration) has gotten top officials in the Spanish government, but especially the Spanish AG, to go along with this conservative CYA plan, hatched in the Bush administration but continued under Obama.

This is not the change I voted for.

Posted by: The Oracle on April 18, 2009 at 6:21 AM | PERMALINK

I just can't read this stuff. Sorry. It sickens me physically. "Enhanced" interrogation techniques ?? Really? Seriously?

NO. What they mean, and what we should say, is DEBASED interrogation techniques. Let's stop torturing the language, along with everything else.

Posted by: Goldilocks on April 18, 2009 at 6:50 AM | PERMALINK

The arrogance of power creates the banality of evil that permeates a totalitarian bureaucracy. When people like John Woo can state with impunity that the President can do whatever he likes, those answerable to Bush get the wink and the nod.

As a boy Bush blew up frogs with firecrackers. At Yale he branded fraternity pledges with a red hot coat hanger.

Why do we torture? Because we can. . .

Posted by: DAY on April 18, 2009 at 7:19 AM | PERMALINK

If the memos were meant to form the legal basis for conducting torture, then they could hardly use torture victim data collected prior to the establishment of the legal basis for conducting torture - it would have unavoidably defined instances in which they exceeded their defined levels of "legal" torture.

Posted by: zoot on April 18, 2009 at 7:42 AM | PERMALINK

There are 3 reasons for torture::

1) extract valuable information from a subject.
2) punish a subject.
3) force a subject to confess to things they haven't done just to stop the torture. Such confessions are useful for mock trials, or just to show how good the interrogation practices are.

The liberal consensus is that torture (1) doesn't work, (2) is immoral, and (3) is propaganda.

I don't think the US has had any mock-trials based on torture confessions.

However a lot of the past US terrorist alerts seem to be derived from whatever they could torture prisoners to invent.

Posted by: monkeyboy on April 18, 2009 at 8:20 AM | PERMALINK

More disturbing and insidious to me is the hidden in plain sight assertions that healthcare professionals assessed victims (they were NOT patients at that point in time - only after the victims were tortured could they be considered patients, but essentially they were doubly victims) for non-medical reasons. That, by itself, is assault and battery, is malpractice, and is grounds for revocation of licensure. That they were assessing these detainees in order to assist in the plan of torture is the grossest sort of unethical malpractice.

They need to be gone from their respective professions, and every healthcare profession needs to take a very public stance of total and absolute rejection of any of its members being used as agents of abuse or torture. Failure to do that is, in my view, grounds for that "profession" to be considered catastrophically failed and strip it of its autonomy and authority to practice independently with governance and regulation arising from its members.

Posted by: tribulation periwinkle on April 18, 2009 at 8:28 AM | PERMALINK

Sorry, monkeyboy, but there are four reasons to torture.

4: It's fun.

(ample evidence available in the files of serial killers. . .)

Posted by: DAY on April 18, 2009 at 8:52 AM | PERMALINK

Shouldn't the lack of waterboarding precedent be enough cause to get the memo authors disbarred?

Posted by: Walker on April 18, 2009 at 9:04 AM | PERMALINK

"The great mystery to me is if torture doesn't work, why do we do it? "

Why are people in power sadistic?

Is that your question?

Because they can be.

It takes people of exceptionally strong character to resist the temptations to abuse power.

Every day people in power, from assistant managers at McDonalds on up, abuse their authority. They do it because they want something & no one resists them - if someone does, they metaphorically bare their fangs & screech louder.

There is no other reason - it certainly is NOT because "torture works".

Posted by: sidewinder on April 18, 2009 at 10:18 AM | PERMALINK

The striking thing about the memos is the absence of reference to "facts." The OLC was very good in writing "We are told that...." "We are informed that..." Their "opinion" is based on the "facts" presented. So, if the WH says "no evidence of prolonged harm", the OLC can write "Based on your statement that there is no prolonged harm..." This is very common in legal writing. The memos are well crafted in defining what would be "torture" and then saying "Well, the WH says it's not doing those things" or "The WH says those aren't the results." The poor lawyering part is the discussion of "intent" - arguing since the "intent" is to get information and not to cause physical harm, there is no "torture." That doesn't pass the laugh test. For example, in the insurance setting, child molesters have claimed the injuries to the child were an "accident" - because the molester didn't intend any harm - after all they "love" children. The Courts have had little problem rejecting those arguments holding that molestation is inherently harmful and intentional.

Posted by: anon on April 18, 2009 at 10:37 AM | PERMALINK

I'm no shrink, but from my own experiences I think it's very safe to say that any intense pain or nagging terror will leave a lasting impression.

I was nowhere near the twin towers, nor did I know anyone who lost their lives on 9/11. But the horror of it all, the people jumping out those windows, the photos of the firemen going up those stairs still sickens me to this day. Even when I think I've fully recovered, I'll see a commericial that will trigger a memory and I feel nauseous all over again.

I believe that the reason the data was left out because the memos were solely about justification. There is no terror or harm done to any human being that won't have lasting lifetime effects. They already knew this. But they had to convince themselves first, and then those who performed the acts to look beyond their own revulsion to a more glorified notion that it was for ultimate good of everyone.

"I should add that there seemed nothing particularly horrifying about her showing me the "special department" - that is, she was not horrified nor was I, at the time. It was matter of some interest. Soldiers are interested, not horrified. Only later was I horrified. We've got it all wrong about horror. It doesn't come naturally but takes some effort." - The Thanatos Syndrome

Posted by: MissMudd on April 18, 2009 at 11:04 AM | PERMALINK

There's also some interesting CYA going on in the footnote on page 44 of the PDF that cites Hilao v. Estate of Marcos, a civil suit. First, there's the weaselly, "The court reached no conclusion that the technique by itself constituted torture." But the footnote continues, "However, the fact that a Federal appellate court would even colloquially describe a technique that may share some [of the] characteristics of the waterboard as 'water torture' counsels continued care and careful monitoring in the use of this technique."

Clearly, this is a "don't come crying to me if you get dinged" warning.

But the case cited is interesting. A description of the case begins: "The district court instructed the jury that it could find the Estate liable if it found either that (1) Marcos directed, ordered, conspired with, or aided the military in torture, summary execution, and 'disappearance' or (2) if Marcos knew of such conduct by the military and failed to use his power to prevent it. The Estate challenges the latter basis for liability ... ". Certainly the memo constitutes at least aiding the CIA in the practice of waterboarding. And it does not take very much to conclude that it constitutes conspiring with them to evade the law. Could Bradbury have felt a bit nervous about his possible personal civil liability if any of the victims managed to gain access to the courts? Could he have been attempting to establish a pre-emptive "they didn't heed my warnings" defense?

Posted by: Peter on April 18, 2009 at 11:26 AM | PERMALINK

April 18, 2009

It is now day 3 of Obama renouncing his oath of office to uphold the Constitution and the laws of our country.

Posted by: AngryOldVet on April 18, 2009 at 12:20 PM | PERMALINK

@The Oracle: I have a less cynical view of possible Spanish/US collusion. Didn't the Spanish say that prosecution would be more appropriate in the US? Obama's statement leaves the possibility open to prosecuting the lawyers and the higher-ups, he only gave the actual torturers an amnesty. If the Spanish are now saying that they would only go after the torturers, they are saying that they will prosecute those that the US chooses not to prosecute.

I wouldn't be surprised to see the Spanish change their tune the day the US DOJ says that they won't prosecute Yoo, Bybee and the rest.

Posted by: Joe Buck on April 18, 2009 at 1:07 PM | PERMALINK

What if the U.S. used all of these medical/psycholgical experts to examine military recruits for mental/emotional stability before deploying them to combat situations? Methinks many would be found unfit for the rigors of combat and removed to less dangerous positions. Perhaps none would pass the test, then what would we do for war? That this amount of effort is used for "interrogation techniques" and thus not available to treating and protecting "our own" is criminal and immoral.

The real issue is the immorality and ineffectiveness of war as a tactic for bringing peace to the world. If torture does not work, then how can it be said that war works? What is the difference in maiming, killing or threatening same to masses and applying it to individuals to extract some desired behavior?

I am committed to Oneness through Justice and Trahsformation
peace,
st john

Posted by: st john on April 18, 2009 at 2:31 PM | PERMALINK




 

 

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