Yesterday the Obama administration ordered the release of four Bush-era memos from the Office of Legal Counsel (OLC) that vividly describe "enhanced interrogation" techniques used by the CIA. The memos were released in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU).
"Transparency won today," said Ken Gude, a human-rights and international-law expert at the Center for American Progress.
One memo, written in August 2002 and signed by then OLC Chief Jay Bybee, approves a list of 10 "enhanced interrogation" techniques that the CIA wanted to use against Abu Zubayda, who was believed to be a senior member of al-Qaeda. The techniques are described in a detached, clinical manner: "walling," the act of throwing detainees against a "flexible wall," and "close confinement," the act of placing a detainee within a confinement box that forces the detainee to stand or sit. The memo also approves the use of insects with the confinement box to enhance detainees' sense of terror.
The techniques listed do not rise to the level of torture, the memo says, because they do not cause severe physical or mental suffering. But the abstract descriptions of these techniques stand in stark contrast to detainee testimony of how they were actually applied, according to a 2007 report by the International Committee of the Red Cross. In addition to describing techniques outlined in the Bybee memo, the ICRC report describes several other techniques, such as forced nudity, the dousing of detainees with cold water, and forcing detainees to wear diapers. All of these appear to violate the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which the United States is a signatory.
Alex Abdo, a legal fellow with the ACLU's National Security Project, says comparing the clinical description in the OLC memos to the ICRC report was surreal. "The four memos were written by lawyers trying to construct a legal regime that allowed the unthinkable. The sterilized language they use in the memos as compared with the graphic descriptions of the ICRC report make that patently clear," Abdo says. "It's as though you're in Alice in Wonderland."
Waterboarding is a form of torture in which cloth or cellophane is placed over the victim's mouth or head and water is poured over him to force a sensation of suffocation and drowning. The victim is restrained to a wooden board by leather straps to prevent struggling during the procedure. In the Bybee memo, waterboarding is described as a "controlled acute episode." During the procedure, "although the subject may experience the fear or panic associated with drowning, the waterboard does not cause physical pain." The personal accounts from the detainees contradict this description.
Abu Zubayda, Khalid Sheik Mohammed, and Abd al-Rahim al-Nashiri were all considered to be high-level al-Qaeda operatives. All three were waterboarded and told the ICRC that waterboarding caused them "considerable" pain. Zubayda, who had sustained gunshot wounds to the thigh, stomach, and groin, told the ICRC that "the pressure of the straps on my wounds caused severe pain. I vomited." Khalid Sheik Mohammed, who has admitted to being the mastermind behind the September 11 attacks, also told the ICRC that he sustained injuries as he struggled against the leather straps while being waterboarded.
The Bybee memo also describes a procedure known as "walling." The detainee wears a thick collar, which the interrogator uses to throw him against a "flexible wall." This "false wall" is meant to be constructed in such a way that impact creates a loud sound. Bybee wrote, "The idea is to create a sound that will make the impact seem far worse than it is and will be far worse than any injury inflicted on an individual." In Bybee's description, the detainee's shoulder blades are meant to hit the wall, implying that the detainee's back is to the wall.
In practice though, the ICRC report indicates that Zubayda was slammed "directly against a hard concrete wall." Another detainee, Walid Bin Attash, said that he was not only slammed against the walls of his interrogation room but that he was led along the corridor by his collar and slammed against the wall as he went. Another detainee said his head was slammed against a pillar repeatedly. One of the other memos released yesterday, written in May 2005 by Steven G. Bradbury, who was then head of the OLC, indicates that "walling" could be used "20 or thirty times consecutively when the interrogator requires a more significant response to a question."
The August 2002 Bybee memo and the May 2005 Bradbury memo describe two techniques other than "walling" that involve direct contact between an interrogator and a detainee, "facial slap" and "abdominal slap," both of which "do not cause pain that is difficult to endure." The ICRC report indicates that detainees were more than merely slapped; they were beaten to the point of bleeding. "During the early days of the interrogation I was often subjected to punches and slaps to the face by the interrogator," an unnamed detainee told the ICRC. "Two Afghan guards held me by the shoulders during the beatings."
One of the more harrowing approved methods in the Bybee memo is the use of "confinement boxes," which restrict the detainee's movement. The detainee is placed in a confinement box that is either too narrow to sit or too short to stand. The memo approves the use of the narrower box for up to 18 hours and the shorter box for up to two. The memo also approves the insertion of an insect into the confinement box with the detainee.
The Bybee memo asserts that techniques selected for use with Zubayda wouldn't "affect the healing" of his wound and that Zubayda remained "flexible" despite multiple gunshot wounds and therefore could be placed in a confinement box without "substantial pain." Zubayda told the ICRC that being forced to sit in a confinement box was "very painful" because of the wounds to his leg and stomach. The combination of sweat, pressure, and friction because of his inability to find a comfortable position caused his leg wound to reopen.
The Bybee memo asserts that stress positions, in which the detainee is forced to maintain an uncomfortable position for a long period of time, "may cause muscle fatigue" but that "any pain associated with muscle fatigue is not of the intensity sufficient to amount to severe pain and suffering." Detainees told the ICRC they were shackled in "stress positions" with their arms above their heads for two or three days continuously, and two or three months intermittently, and were allegedly kept naked during that time. In one case, a detainee's prosthetic leg was removed to make standing more difficult.
Detainees said that their legs and ankles swelled as a result of their arms being shackled in the stress position and that they were forced to defecate on themselves. Occasionally, detainees said, they were allowed to sit on a bucket to use the bathroom but were not allowed to clean themselves afterward. Only one of the detainees who experienced this agreed to have his name published. The ICRC reports that detainees were checked regularly by medical personnel while undergoing this procedure.
In addition, the ICRC report suggests some of the methods approved by the Bybee memo were used beyond the described parameters. The memo says that Zubayda could not be sleep deprived for more than 11 days at a time, while Zubayda claims that he was shackled to a chair for "two to three weeks" during which he developed blisters on his legs from lack of movement. Another detainee said that loud music was played 24 hours a day throughout his yearlong confinement in Afghanistan. Jane Mayer notes in The Dark Side that a 1930 American Bar Association Report, later cited in a Supreme Court decision, found that "deprivation of sleep is the most effective torture and sure to produce any confession desired." The memos indicate that CIA operatives were allowed to keep detainees awake for up to 11 days at a time.
Several detainees told the ICRC of being shackled continuously for months on end. One had to be cut out of his shackles because the locking mechanism had rusted. While the Bybee memo notes that "intentional infliction or threat of infliction of severe pain or suffering" violates the Torture Victims Protection Act, detainees interviewed by the ICRC said they were threatened with sodomy or infection of HIV. Abd al-Rahim al-Nashiri, the suspected mastermind of the U.S.S. Cole Bombing, said he was threatened with sodomy and the arrest and rape of his family.
The presence of medical personnel seems to have been key to the rationale that the above treatment was not torture. Torture, according to the Bybee memo, requires that the "individual must have the specific intent to inflict pain or suffering" and that "the absence of specific intent negates the charge of torture." Bybee further asserted that the presence of medical personnel with the ability to halt interrogations if necessary "indicates that it is not your intent to cause severe physical pain." One detainee, Encep Huraman, was told by a "health person" that "I only look after your body because we need you for information."
With the release of the memos, President Barack Obama indicated that CIA officials who relied in "good faith" on legal advice from the Office of Legal Counsel would not be subject to prosecution for participating in "enhanced interrogations."
Ken Gude says this was a prudent move: "The administration needs to build rapport with our intelligence agencies in order to fight al-Qaeda and prevent terrorist attacks."
But an administration source told Marc Ambinder at The Atlantic that the immunity did not apply to interrogators who acted in bad faith or who did not adhere to the guidelines set by the OLC. The contrast between the description of how the techniques were applied in practice and how they were first outlined by Bybee suggests that there may be interrogators to whom the immunity does not apply.
Abdo notes that the blanket immunity issued by Obama also did not seem to apply to officials outside the CIA. Abdo says that Obama's statement "leaves open the possibility of prosecuting the architects of the Bush administration program, Justice Department officials, and senior level Bush administration officials."
Jay Bybee is currently a U.S. federal judge on the United States Court of Appeals for the Ninth Circuit. Steven G. Bradbury left the Office of Legal Counsel in January.
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