The odd leap in the interrogation memos

posted at 8:48 am on April 17, 2009 by Ed Morrissey

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.

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You take two of them up in a helo, you push one out and start asking the other questions. You’ll know all he has to offer before you land.

Akzed on April 17, 2009 at 11:29 AM

I’d like to defend Bybee, but in this case, with this memo, I have to agree with the critics.

your moral integrity is refreshing.

sesquipedalian on April 17, 2009 at 11:36 AM

This is a pretty straightforward legal analysis, and it’s logical, so, while I understand your point, Ed, it’s not valid from the point of view of legal analysis.

A, B, C, and D fall under 2. Therefore, you can have any of the conditions of A, B, C, and D, as long as it doesn’t violated ‘prolonged mental harm’ or subsection 1.

Since he argues it doesn’t fall under subsection 1 (which might be a better argument against him), it must lead to prolonged mental harm. And then he applies the common definition of prolonged to finish his argument. It makes logical sense.

blue13326 on April 17, 2009 at 11:43 AM

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

Perhaps, but it’s not “cruel and unusual punishment,” i.e. not torture. Those techniques are used to mess with the detainees head, it’s really effective. They also don’t constitute as torture (which makes the critics points null and void) because

A) the subject wasn’t facing imminent death and

B) the subject(s) have no lasting effects (asside from emotional scars) from the enhanced interrogation techniques.

Cr4sh Dummy on April 17, 2009 at 11:45 AM

What threat of “imminent” death lasts months or years?

“Good night, young Westley. Sleep well; I shall most likely kill you in the morning.”

Beo on April 17, 2009 at 11:54 AM

Excellent post.

And good update, too, pointing out that this is an issue of whether the legal analysis of the statute was reasonable, not an issue of whether the statute should be different.

Baybee’s interpretation — that the threat of imminent death must last for months or years — is absurd. The obvious interpretation is what Ed said:

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.

tneloms on April 17, 2009 at 12:09 PM

I have to disagree Ed, but then my definition of “torture” is quite different. To me, it’s the deliberate and calculated infliction of fear or pain for no purpose other than to do it. The use of ‘torture’ would be used in extreme cases wherein the interrogator KNOWS, based on previously obtained FACTS, that the individual has vital information. We’re at war with these people. They don’t play by any rules. The application of ‘torture’ has been limited. I wouldn’t lose any sleep over it.

GarandFan on April 17, 2009 at 12:23 PM

To those of you who asked why Obama released these, it is because he was compelled to do so by a suit filed by the ACLU. Thursday was the final deadline for releasing them. It had nothing to do with the tea parties.

orange on April 17, 2009 at 12:58 PM

I have to disagree Ed, but then my definition of “torture” is quite different.

That’s nice that you have your own definition, but we need to use the legal definition here, not your own.

I wouldn’t lose any sleep over it.

GarandFan on April 17, 2009 at 12:23 PM

Interesting choice of words.

orange on April 17, 2009 at 12:59 PM

In my opinion I don’t think the US should be concerned about the manner in which we treat these illegal enemy combatants until our enemies (fascist Islamic terrorists) demonstrate they too are concerned with the manner in which they treat their prisoners!

Did our enemy demonstrate any concern for Daniel Pearl or Nick Berg? I think not! In addition, both Pearl and Berg weren’t even combatants, they were innocent civilians yet the animals severed their heads off! The actions of our enemies and how they have conducted themselves in this war do not compare to the care and actions the US has taken when dealing with the illegal enemy combatants the US has captured and to even attempt to equate or compare the two (e.g., moral equivalency) is absurd as there is no comparison!

I’m not saying the US should stoop to their level, the US hasn’t and will never stoop to the depraved level of the animals we are fighting, so excuse me if I think people getting their panties in a wad over water boarding is ridiculous, especially considering we are at war with a brutal enemy that gains the advantage when we play by the rules when they don’t!

The US does not intentionally target civilians, the US does not conduct its military operations and setup bases within civilian populations to use them as human shields, nor does the US conduct its operations from within places of worship as our enemy does as an intentional tactic.

As for the question of legality it is my understanding that since our enemy insists on fighting us without flying the flag of a recognized nation or not wearing the uniform of a recognized nation they are then designated as “unlawful enemy combatants” and because of such designation are not afforded protections under the GC or other internationally recognized protections, here’s some GC information on unlawful enemy combatants:

Part I. General Provisions


Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

Section II. Aliens in the territory of a party to the conflict

Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

Also, here’s some information on the 2001 Presidential Military Order:

2001 Presidential military order

In the wake of the September 11, 2001 attacks, the United States Congress passed a resolution known as the Authorization for Use of Military Force (AUMF) on 18 September 2001. In this, Congress invoked the War Powers Resolution and stated:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.[33]

Using the authorization granted to him by Congress, on 13 November 2001, President Bush issued a Presidential Military Order: “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”[34] which allowed “individuals … to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals”, where such individuals are a member of the organization known as al Qa’ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.

The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The military order uses the term “detainees” to describe the individuals detained under the military order. The U.S. administration chooses to describe the detainees held under the military order as “illegal enemy combatants”.

While I do understand the importance of rule of law in cases like the war against fascist Islam it’s also important to understand a human beings innate sense of survival, as Maslow’s Hierarchy of needs points out survival needs come first, so while the rule of law is important for all civilized peoples just like our constitution it should not be a suicide pact and by placing such restrictions on ourselves places our survival at jeopardy especially when one takes into consideration the depraved tactics our enemies employ.

Again, the US should not stoop to the level of depravity our enemy demonstrates on a daily basis and the US never will stoop to that level of depravity, but to somehow equate waterboarding as equal to what our enemy does is absurd and is in no way morally equivalent!

If waterboarding and other techniques saves even one American citizen, soldier, or prevents another 9-11 (or worse) then I say waterboard away because survival needs come first!

Liberty or Death on April 17, 2009 at 1:02 PM

I’d say that the odd leap has to do with reading 2c out of context. It is part of 2 and is limited to the constraints of 2. Seems like I have read several times things that HotAir writers have written about others using quotes out of context. They were not congratulating those who use quotes out of context.

burt on April 17, 2009 at 1:05 PM

If waterboarding and other techniques saves even one American citizen, soldier, or prevents another 9-11 (or worse) then I say waterboard away because survival needs come first!

Liberty or Death on April 17, 2009 at 1:02 PM

I suspect Patrick Henry might have disagreed with you.

orange on April 17, 2009 at 1:09 PM

To those of you who asked why Obama released these, it is because he was compelled to do so by a suit filed by the ACLU. Thursday was the final deadline for releasing them. It had nothing to do with the tea parties.

orange

Yea orange, I heard that too on NPR. But like NPR it appears you may need to broaden your information sources. From former AG Mukasey and Gen. Hayden:

Nor was there any legal reason compelling such disclosure. To be sure, the American Civil Liberties Union has sued under the Freedom of Information Act to obtain copies of these and other memoranda, but the government until now has successfully resisted such lawsuits. Even when the government disclosed that three members of al Qaeda had been subjected to waterboarding but that the technique was no longer part of the CIA interrogation program, the court sustained the government’s argument that the precise details of how it was done, including limits and safeguards, could remain classified against the possibility that some future president may authorize its use. Therefore, notwithstanding the suggestion that disclosure was somehow legally compelled, there was no legal impediment to the Justice Department making the same argument even with respect to any techniques that remained in the CIA program until last January.

http://online.wsj.com/article/SB123993446103128041.html

John E. on April 17, 2009 at 1:16 PM

Putting the guy in a box with a caterpillar goes beyond silly to the truly ridiculous.

If I was the interrogator, I would have put about 15 caterpillars and other miscellaneous bugs in my mouth. Then sat down opposite the subject, opend my mouth and let the bugs crawl out!

Not only would that unnerve the subject (to say the least) but it would make the interrogator a legend in the Company.

lonesomecharlie on April 17, 2009 at 1:31 PM

I’m not enough of a legal expert to say whether Obama could have “resisted” the lawsuit (though I definitely believe that there’s no reason he should have resisted it, as I dont believe in living under a system of secret law). All I know is that the timing of the release is not suspicious, as it was the deadline required by the courts.

Hey, some of you have (rightly) chided Obama for not always living up to his promise of a more open government. Those of you who have done so have little reason to complain when he does live up to the promise.

orange on April 17, 2009 at 1:35 PM

Bybee’s analysis is correct. The operative words are under the section (2) describing “severe mental pain or suffering”, in which the phrase prolonged mental harm resulting appears.

Whether or not we agree with waterboarding, it’s obvious that Bybee looked at the words and intent of the law and correctly determined its meaning with respect to that act.

Bybee makes it quite clear that physical suffering (beating or wounding) is not permitted, and the one wound which Z currently has needs to be treated and cured. He then addresses the techniques from the standpoint of mental suffering.

If a police officer jammed a gun into my back and yelled “don’t move”, was I being tortured? I’d be in instant fear of losing my life if the officer were to fire his weapon; how can I know what constitutes a movement in his mind? But will prolonged mental harm come to me as a result? It didn’t, so there we are.

With respect to waterboarding, I have now have a great respect for it. Given what the SERE trainers found (that nearly all servicepeople became “cooperative” for a small amount of time after waterboarding), and the fact that the technique as a training method was halted because it could not be defended against, it seems like a necessary addition to our arsenal. There are no long term health effects, either mental or physical, and, in this case, the information obtained by this temporary/transitory method prevented innocent deaths.

unclesmrgol on April 17, 2009 at 1:36 PM

My husband went through SERE school, and was waterboarded. It didn’t leave any lasting effects on him and said it was very effective.

Waterboarding is the least we should do for terrorists who possess vital information, IMO.

BTW, McCain said torture doesn’t work, then in his acceptance speech said he was broken. So, which is it?

kakypat on April 17, 2009 at 1:38 PM

unclesmrgol on April 17, 2009 at 1:36 PM

Good post, and I agree with you.

kakypat on April 17, 2009 at 1:40 PM

I suspect Patrick Henry might have disagreed with you.

orange on April 17, 2009 at 1:09 PM

Yeah, well I’d bet if Patrick Henry had to deal with what we are dealing with (in the here and now) when it comes to protecting the republic and its citizens from fascist Islam he would have a very different opinion, if not then with all due respect to Patrick Henry he’s a P**SY pacifist like you!

Liberty or Death on April 17, 2009 at 1:40 PM

With respect to waterboarding, I have now have a great respect for it. Given what the SERE trainers found (that nearly all servicepeople became “cooperative” for a small amount of time after waterboarding), and the fact that the technique as a training method was halted because it could not be defended against, it seems like a necessary addition to our arsenal. There are no long term health effects, either mental or physical, and, in this case, the information obtained by this temporary/transitory method prevented innocent deaths.

unclesmrgol on April 17, 2009 at 1:36 PM

Exactly, well stated uncle. Not only is waterboarding an important tool but we must also remember that when compared to what our enemies do to captured people (civilians and soldiers) the technique of waterboarding is trivial compared to the level of depravity our enemies stoop to, there is no moral equivelance to be made here…period!

Liberty or Death on April 17, 2009 at 1:45 PM

Akzed on April 17, 2009 at 11:29 AM

Were we stationed together in southeast Asia?

oldleprechaun on April 17, 2009 at 1:50 PM

Hey, some of you have (rightly) chided Obama for not always living up to his promise of a more open government. Those of you who have done so have little reason to complain when he does live up to the promise.

orange on April 17, 2009 at 1:35 PM

But criticizing our President is Patriotic. Hillary Clinton told us so in April of 2003.

Del Dolemonte on April 17, 2009 at 1:53 PM

Yeah, well I’d bet if Patrick Henry had to deal with what we are dealing with (in the here and now) when it comes to protecting the republic and its citizens from fascist Islam he would have a very different opinion, if not then with all due respect to Patrick Henry he’s a P**SY pacifist like you!

Liberty or Death on April 17, 2009 at 1:40 PM

So Patrick Henry was lying when he said that American freedoms are more important than life itself? Interesting.

Perhaps you should consider a change of username, though.

orange on April 17, 2009 at 2:06 PM

But criticizing our President is Patriotic. Hillary Clinton told us so in April of 2003.

Del Dolemonte on April 17, 2009 at 1:53 PM

It is, and you should continue criticizing him when he deserves it. But criticizing him for a lack of openness on one hand and too much openness on the other is a bit incoherent.

Coherent criticisms of the President are welcomed, and I come here to be exposed to them (as well as some incoherent ones, but nobody’s perfect).

orange on April 17, 2009 at 2:08 PM

Not only is waterboarding an important tool but we must also remember that when compared to what our enemies do to captured people (civilians and soldiers) the technique of waterboarding is trivial compared to the level of depravity our enemies stoop to, there is no moral equivelance to be made here…period!

Liberty or Death on April 17, 2009 at 1:45 PM

The point has never been to ask whether we are better or worse than Al Qaeda. The point is to ask whether we are acting within our own laws.

Surely you can agree that a government that acts outside of its own laws is a bad thing.

orange on April 17, 2009 at 2:10 PM

For clarification, the NYT specifically mentions what type of insect (singualar, not plural) was used:

“As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar,” one memo says.

BohicaTwentyTwo on April 17, 2009 at 3:51 PM

“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.”

……….. aren’t we all going to die?

And if you want to hang around a little longer, then I suggest not taking up arms against the United States military while wearing civilian clothes and hiding behind women and children………..

Seven Percent Solution on April 17, 2009 at 4:05 PM

BohicaTwentyTwo on April 17, 2009 at 3:51 PM

According to an article in The Guardian, the fuzzy caterpillar treatment was approved, but never used.

BohicaTwentyTwo on April 17, 2009 at 4:11 PM

The IDIOT in chief still doesn’t understand who, or what our enemies are like! Pathetic part is, he’s attempting to inoculate the American public into any means to gain intel, to save American lives, as being unlawful.

Yeah Barack Ostumbler in chief, we need an ACLU lawyer and/or liberal pinko judge in every foxhole/operation, to read an enemy combatant his Miranda rights… /Sarcasm

byteshredder on April 17, 2009 at 4:22 PM

These guys are lucky to even be alive.

I think the U.S. has been more than nice to these terrorists.

I’m still waiting for the Libtard logic to kick in and these guys are going to start seeing the Light and quit murdering people inspired by our example of niceness!

Uh huh…

Dr. ZhivBlago on April 17, 2009 at 4:26 PM

the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality

That’s what I’d do: jihadis on LSD.

Tzetzes on April 17, 2009 at 9:37 PM

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