Yesterday, as the result of a Freedom of Information Act (FOIA) request by the American Civil Liberties Union (ACLU), the federal government released three memos related to White House torture policy. There are two things that are particularly striking about these documents; the first is how heavily redacted they are, and the second is how stomach-churning the remaining language is in its clear intent to provide cover for the purposeful violation of human rights and the law.
The first memo is from August 2002, and concerns advice from the Office of Legal Counsel (OLC) - in the person of Assistant Attorney General Jay Bybee - to the Central Intelligence Agency (CIA) on the interrogation methods that could be used on prisoners. Relying on a highly technical parsing of case law and precedent surrounding the definition of torture, it makes the following claim about interrogators who physically abuse their captives:
Other language in the memo remarks that if an interrogator has "an honest belief" that he is causing severe physical or mental suffering, he can be accused of torture. It goes on to effectively dismisses this small, potential restraint, however, by noting that an "honest belief" that (conversely), harm is not being caused need not be "reasonable." Thefore, if the results of certain methods of questioning under duress are not fully understood - or if the questioner is ignorant of the effects, delusional, or fully capable of lying about his beliefs - then, by the lights of this memo, his actions cannot be termed torture, no matter what harm is done to the detainee.
It is worth observing that this document was produced on the same day as another by the same author that is now commonly referred to simply as the Torture Memo. Anyone familiar with the despicable contentions set forth in the latter - including the contention that even if an act is "cruel, inhuman, or degrading," it doesn't necessarily inflict the level of suffering required by law to be defined as torture - shouldn't be surprised by the contents of the missive described above. When taken togther, it is entirely clear that there was an ongoing and coordinated effort from the Office of Legal Counsel to provide legal cover - no matter how tenuous or poorly reasoned - for American torturers.
There is little to glean from the January 2003 memo from the CIA to the OLC, other than that:
The final memo is from August 2004, when information about America's torture programs was just beginning to come to public attention. From the CIA to the OLC, it expresses (with some apparent concern) that the landmark Supreme Court case Rasul v. Bush, which established the right of the court system determine whether prisoners at Guantanamo Bay and other sites were rightfully imprisoned, could lead to judicial review of government interrogation practices, a prospect which it is fairly clear the author does not relish.
Despite the media and politicians' continued use of euphimisms like "enhanced interrogation techniques," it has been clear for some time that the United States has been torturing prisoners captured in the so-called War on Terror. Combined with the rendition of captives to nations that openly countenance torture during questioning, secret jails in foreign countries, and even covert prison ships, the legal cover provided by the highest levels of the Bush Administration has been part of a closely directed and tightly synchonized effort to subvert both American and international law - not to mention commonly held standards of human rights - in the service of the president's imperial ambitions. (See How We Became Torturers for more background.)
As more documentation like these memos comes to light, it will be interesting to see if the country reaches a tipping point that will make it admit its culpability and move to punish the Bush Administration's criminal acts. If past experience is any guide, that point will be a long time from now, if it ever arrives.
The first memo is from August 2002, and concerns advice from the Office of Legal Counsel (OLC) - in the person of Assistant Attorney General Jay Bybee - to the Central Intelligence Agency (CIA) on the interrogation methods that could be used on prisoners. Relying on a highly technical parsing of case law and precedent surrounding the definition of torture, it makes the following claim about interrogators who physically abuse their captives:
To violate the statute [against torture], an individual must have the specific intent to inflict severe pain or suffering... Based on the information you have provided us, we believe that those carrying out these procedures would not have the specific intent to inflict severe physical pain or suffering.In other words, as long as the "intent" of torture is not torture for its own sake - but rather to gather "vital information in the War on Terror" (my quotes) - effectively, no manner of assault is out of bounds.
Other language in the memo remarks that if an interrogator has "an honest belief" that he is causing severe physical or mental suffering, he can be accused of torture. It goes on to effectively dismisses this small, potential restraint, however, by noting that an "honest belief" that (conversely), harm is not being caused need not be "reasonable." Thefore, if the results of certain methods of questioning under duress are not fully understood - or if the questioner is ignorant of the effects, delusional, or fully capable of lying about his beliefs - then, by the lights of this memo, his actions cannot be termed torture, no matter what harm is done to the detainee.
It is worth observing that this document was produced on the same day as another by the same author that is now commonly referred to simply as the Torture Memo. Anyone familiar with the despicable contentions set forth in the latter - including the contention that even if an act is "cruel, inhuman, or degrading," it doesn't necessarily inflict the level of suffering required by law to be defined as torture - shouldn't be surprised by the contents of the missive described above. When taken togther, it is entirely clear that there was an ongoing and coordinated effort from the Office of Legal Counsel to provide legal cover - no matter how tenuous or poorly reasoned - for American torturers.
There is little to glean from the January 2003 memo from the CIA to the OLC, other than that:
Unless otherwise approved by Headquarters CIA officers [redacted] may use only Permissible Interrogation Techniques. Permissible Interrogation Techniques consiste of both (a) Standard Techniques and (b) Enhanced Techniques.ABC News reported in late 2005 that the list of Enhanced Techniques was as follows:
- The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.
- Attention Slap: An open-handed slap aimed at causing pain and triggering fear.
- The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.
- Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.
- The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.
- Water Boarding [sic]: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.
The final memo is from August 2004, when information about America's torture programs was just beginning to come to public attention. From the CIA to the OLC, it expresses (with some apparent concern) that the landmark Supreme Court case Rasul v. Bush, which established the right of the court system determine whether prisoners at Guantanamo Bay and other sites were rightfully imprisoned, could lead to judicial review of government interrogation practices, a prospect which it is fairly clear the author does not relish.
Despite the media and politicians' continued use of euphimisms like "enhanced interrogation techniques," it has been clear for some time that the United States has been torturing prisoners captured in the so-called War on Terror. Combined with the rendition of captives to nations that openly countenance torture during questioning, secret jails in foreign countries, and even covert prison ships, the legal cover provided by the highest levels of the Bush Administration has been part of a closely directed and tightly synchonized effort to subvert both American and international law - not to mention commonly held standards of human rights - in the service of the president's imperial ambitions. (See How We Became Torturers for more background.)
As more documentation like these memos comes to light, it will be interesting to see if the country reaches a tipping point that will make it admit its culpability and move to punish the Bush Administration's criminal acts. If past experience is any guide, that point will be a long time from now, if it ever arrives.
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