I spent the evening yesterday reviewing the Bush administration’s Office of Legal Counsel memos on enhanced interrogation techniques.  I took a particular interest in the memo on Abu Zubaydah, the Bybee memo, the first memo that the OLC issued in order to instruct interrogators on the boundary of their actions.  The memo discusses a series of escalating interrogation techniques:

  • Attention grasp
  • Walling
  • Facial hold
  • Facial slap (insult slap)
  • Cramped confinement
  • Wall standing
  • Stress positions
  • Sleep deprivation
  • Insects placed in confinement box
  • Waterboarding

Of these, only the last four even approach the notion of torture, which has a clear definition in statute:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(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; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

This passage is key to the opinion issued by Jay Bybee in this case.  Bybee explicitly refers to this statute, and addresses each of the requested techniques in detail.  The sleep deprivation was meant to cause disorientation, not panic, and interrogators proposed to limit the stress positions.  Introducing insects into the cramped confinement might have caused panic, except that Bybee insisted that the insect chosen could neither bite nor sting, and that Zubaydah had to be informed of its innocuous nature — making it an annoyance at worst.

However, I’m puzzled by a passage on waterboarding and Bybee’s legal conclusion afterward.  On page 15, he writes (emphases mine):

We find the use of the waterboard constitutes a threat of imminent death. … Although the procedure will be monitored by personnel with medical training and extensive SERE school experience with this procedure who will ensure the subject’s mental and physical safety, the subject is not aware of any of these precautions. From the vantage point of any reasonable person undergoing this procedure in such circumstances, he would feel as if he is drowning at the very moment of the procedure due to the uncontrollable physiological sensation he is experiencing.  Thus, this procedure cannot be viewed as too uncertain to satisfy the imminence requirement.  Accordingly, it constitutes a threat of imminent death and fulfills the predicate act requirement under the statute.

Although the waterboard constitutes the real 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, eg, mental harm lasting months or years.

If Bybee had rejected the notion that a subject felt the fear of imminent death in waterboarding, then his approval of it might be defensible.  However, that’s not the case.  Bybee specifically states that it does meet that definition.  But because it only last a few moments or minutes, depending on the number of times the procedure is applied during a single session, the “imminent death” clause is supposedly immaterial.

This makes no sense at all.  Using Bybee’s reasoning, the “threat of imminent death” part of the statute would have to last for months or years in order to qualify as torture.  What could possibly qualify in section 2 (C)?  We’d have to make a subject smoke for several years and threaten him with cancer.

Imminent threats, by definition, are short-term situations.  If one ignores that, all sorts of actions commonly considered psychological torture would be approved.  False hangings, for example, could be permissible as long as they didn’t cause serious physical injury.  Faked firing squads would also be permissible.  Gas chambers, injections, one could go on and on, and all of it would be legal because it doesn’t last for “months or years”.  The more obvious conclusion from the statute is that procedures creating an “imminent threat of death” in and of themselves create lasting severe mental pain, which is what makes them torture.

I’d like to defend Bybee, but in this case, with this memo, I have to agree with the critics.  Bybee turned 2 (C) on its head in order to justify the waterboarding request.  Given the deep fears of further attacks, one can understand why Bybee wanted to give interrogators the greatest latitude possible, but this reasoning is insupportable.

Update: Rick Moran has more thoughts; I don’t agree with all of it, but Rick is always worth reading.  I agree that Bybee’s memo reads like Bybee started off with the foregone conclusion that all of the requested techniques would be approved and tried to justify them by working backwards.  The waterboarding leap especially smacks of that.

Update II: People are missing a subtle but important point here.  The comments are filled with “if my family was threatened, I’d cut off fingers” assertions, but then you’d also be breaking the law.  Bybee and the OLC were asked what interrogators could do within the law, and instead the OLC reverse-engineered a legal opinion to allow them to violate it. I understand why they did, but it still violated the statute.

That’s what was wrong with John McCain’s assertion that a president could just break the law and hope Congress justified it later, rather than rewrite the statutes to make plain what could be done in the “ticking time bomb” scenario. The law is supposed to hold all people equally accountable.  If we foresee a need to work outside the law, then change the law to make sure it covers those situations.