“Shocks the conscience.”
That’s the test that Steven G. Bradbury, acting head of the Office of Legal Counsel in Bush’s Justice department used to decide whether or not an “enhanced interrogation technique” was torture. I won’t be the only one to suggest, after reading three memos by Bradbury and one by now-Federal Judge Jay Bybee, that perhaps Bradbury doesn’t have much of a conscience to be shocked.
The ACLU has posted the memos, declassified Thursday, April 16th by the Obama administration, on its Web site. They don’t take long to read, but they inspire plenty of shouting at the computer screen.
Spencer Ackerman, at the Washington Independent, describes the memos as “medieval documents,” writing:
“These memos are basically colloquys between John Rizzo, then the acting CIA legal counsel and either Jay Bybee (in 2002) and Steve Bradbury (in 2005), the OLC chiefs, in which Rizzo asks OLC what the CIA can legally inflict on detainees. OLC, like a medieval priest, finds the right incantation to transform a dark act into a holy one.”
In all of the memos, the description of waterboarding is chilling in its deliberate, specific confidence. The assurances that you can’t use the techniques on United States citizens just reminds me that in war, it’s all about Othering the opponent.
As long as it’s not you, it’s OK. When you read the calm descriptions of the techniques, you realize that the people writing the memos are supremely confident that these techniques will never be applied to them. They won’t. They may well be applied to our troops captured in battle, with the justification that we did it first, but Jay Bybee and Steven Bradbury will never be waterboarded, never be deprived of sleep for days.
In the memos, each technique is perfectly calibrated to remain just on the proper side of the “severe pain and suffering,” but where the detainee is obviously supposed to fear that worse is coming. For instance, the Bybee memo describes putting the detainee in a dark, confined box with an insect after noting his fear of insects. Hilzoy at Obsidian Wings darkly notes the similarity to Orwell’s 1984.
Each time the memo authors admit that something is, in essence, wrong, they step back and say “but it doesn’t necessarily violate Section 2340A” – reverting to safe bureaucratese.
“Walling can only constitute a threat of severe physical pain if a reasonable person would infer such a threat from the use of the technique itself.” But isn’t that the point of any of these techniques? To make the suspect think that something worse is coming unless he gives up the info? (“Walling,” by the way, is slamming a detainee against a false wall, rigged to make a louder noise than a real wall would but apparently to be less physically harmful.)
The names given to the techniques approach Orwellian doublespeak as well: “Detainees subject to sleep deprivation who are also subject to nudity as a separate interrogation technique will at times be nude and wearing a diaper.”
Oh, by sleep deprivation, they mean: “Generally, a detainee undergoing this technique is shackled in a standing position with his hands in front of his body, which prevents him from falling asleep but also allows him to move around within a two- to three-foot diameter.”
The CIA put detainees through up to 180 hours of sleep deprivation—7 and a half days. Again, aside from the moral outrage, what kind of usable intelligence did they think they were going to get after a week with no sleep?
“Some individuals may experience hallucinations,” but y’know, it’s cool. They all had problems beforehand, so anything that happens couldn’t possibly be our fault. Never mind that the Army Field Manual specifically prohibits food deprivation and sleep deprivation—a liquid diet is required so detainees won’t aspirate the food they’ve eaten while struggling to breathe on the waterboard!
“We also understand that the waterboard is not physically painful.” So can I do it to you, then?
The first Bradbury memo notes that, “Both KSM and Zubaydah had ‘expressed their belief that the general US population was ‘weak’, lacked resilience, and would be unable to ‘do what was necessary’ to prevent the terrorists from succeeding in their goals.’” With this one sentence, the entire memo takes on a whole new meaning—as if the “enhanced interrogation techniques” are suddenly less about gaining actionable intelligence and more about one giant pissing contest between the U.S. and the “terrorists.”
The mental gymnastics required to find legality in this mess of horrible conduct is simply astounding. Torture doesn’t violate the UN convention against torture because it took place outside of U.S. jurisdiction? Aside from the utter disgust at this argument, it’s rather irrational—wouldn’t a place where the U.S. is holding prisoners be considered to be under US jurisdiction? The Eighth Amendment doesn’t apply because this isn’t punishment—these people haven’t been convicted of a crime? Doesn’t that make it worse, then, to do this to people who have not been convicted?
And at the end of each memo, the line “Please let us know if we may be of any further assistance.” It rings in my head in the robotic voice that offers up options when you call customer service—utterly banal, utterly insensitive, utterly false.
It is hard to come down to a level calm enough to write about this—the outrage is simply too easy, which makes the tone of the memos even more frustrating. Yet we must remember that the authors are not monsters. They are not evil. They are people who convinced themselves that what they were doing was right. They wrote these memos and if they didn’t believe what they wrote in them, they at least believed that they were justified. The coolness, the deliberate legalese and bureaucratese–this isn’t a bunch of interrogators getting carried away.
We cannot blame this on a couple of bad apples on the lower rungs. This came from the top, it was carefully reasoned and researched, and it was approved.
Prosecuting the interrogators might be satisfying and it might even be the right thing to do. But what it won’t do is get rid of the problem. I’m no fan of the CIA, but I think the prosecutions, if there are to be any, need to be aimed straight at the top—at the people who wrote these memos and the people who authorized the torture. This is a time when top-down is exactly the right way to do things.
Obama made the right decision to declassify these memos, despite threats from Republicans that they would continue to hold up his nominees if he released them. It’s not enough simply to have this information out there, however.
Thursday night, Countdown with Keith Olbermann showed a chilling video of a waterboarding demonstration in the background, and former Nixon White House Counsel John Dean spoke about the possibility for prosecutions stemming from the release of these documents. Dean noted that while Obama had ruled out prosecuting the CIA officers who carried out the interrogations, he did not close the door on the possibility of action against the authors of the memos.
“The story isn’t over,” Dean said.