About the methods in those torture memos
Quite apart from my personal reactions to the memos, there is the question of how well the system of interrogation they describe works.
The first two memos pretty much cover all we need to go over (after the first forty pages they become redundant, as they elaborate the various excuses, rationalisations, and "justifications" behind the answers they came up with. You can find them all here. You can find some legal commentary here at Law of War.org). The short answer to the questions the 'utilitarian', who wants to justify the use of torture, needs to ask: 1: does it get good information, 2: does it make the US, and her residents, safer, and 3: Does it further the overall agenda of the US in the "War on Terror"? is no, it does not.
So let's look at them, and see why.
Right at the front, in the second graf we see the largest part of the problem. "In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase."
The information they believed him to have. From the get-go that’s a red flag. One doesn’t interrogate to get confirmation. One interrogates to find out what the subject knows. The only confirmation one is ever looking for is not what one “believes” the source to know, but rather corroboration of things other sources have said.
Even that’s problematic. Going “fishing” for specific facts runs the risk of leading the source to the answers the interrogator is looking for. It’s a form of training, and leads to confirmation bias. (when one gets to the end of the memos, one finds that half of the reports the CIA filed in 2004 came as a result of just “a few” subjects. When just a few sources are the basis for more than 3,000 intelligence reports; in a single year, something is wrong).
The training starts when they begin to remove his, “expectations of treatment.” They lay out 10 techniques, designed in concert with the “Survival, Evasion, Resistance, Escape (SERE) training psychologist” they were working with. SERE isn’t meant to be a blueprint of “how-to”; it’s meant to show the students that torture can be used to break anyone. Even those who know they can actually get out. SERE is a form of the Milgram Experiment, writ small, and with more safeguards.
The ten things they outline are: ”(l) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6)wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard. You have informed us that the use of these techniques would be on an as-needed basis and that not all of these techniques will necessarily be used. The interrogation team would use these techniques in some combination to convince Zubaydah that the only way he can influence his surrounding environment is through cooperation. You have, however, informed us that you expect these techniques to be used in some sort of escalating fashion, culminating with the waterboard, though not necessarily ending with this technique.”
"Not necessarily ending with that technique." Nice to know that they aren’t planning things out so carefully. After they waterboard him, they might go to “the stand-up”. Every one of those techniques can be torture. Some of them are torture on their face (The Stand-up, Waterboarding, Cramped Confinement). The others might not be torture, but in this context (convincing him that his present “circumstances” are changed), they probably are.
The one which is most problematic and the one which most people in this line of work keep in the “gray area” is sleep deprivation.
Lack of sleep makes for odd reactions. It reduces willpower. I’ve been sleep deprived, and done some strange things. I’ve had hypnogogic events. My personal feeling is that sleep-dep is less than useful.
If I were brought a source who’d not slept, I’d not refuse to question him. In that state he’d be less likely to recall any training he had against interrogation. The second thing I’d do is get him a meal, and a bed. Then I’d do my best to get enough sleep to be alert when I talked to him the next morning.
That’s not what they had planned.
Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual's ability to think on his feet and, through the discomfort associated with lack of-sleep, to motivate him to cooperate. The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction_ You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.
They didn’t plan to keep him awake for more than 11 days at a time. 11 days. I’ve never gone more than about 60 hours without sleep. That led to some of those “waking dream” states I mentioned. I wasn’t being forced to do it. It’s just the way the training went. If I’d been lower in the chain of command, I’d have gotten a couple of hours of sleep in that time, but I wasn’t, so I didn’t.
The other time I recall such events was in the middle of Basic Training. I’d been averaging about four hours of sleep a night, for about three weeks. Then I had a run of nights where events conspired to cut that to no more than three hours (or a couple of two-hour stretches). Next thing I knew I was reading about how to defend myself against chemical attack, while dreaming about something else at the same time. Deuced strange, and I’d rather not do it again, thanks. Eleven days at a time. Which implies they might let him sleep a few days, to allow “the effect of such sleep deprivation to remit”, and then do it again.
Which is stupid. One of the things sleep-dep does is blur the lines between real and unreal. When one is having hypnogogic events, one is in a dream state. Who among us hasn't awakened from a dream while slightly out of phase with the world? The rules are different in dreams. I don't want a source to be the victim of that sort of thing because he will believe things which aren't true. Which will come back to bite me in the ass, because when I repeat them to him they will become true; in his mind. After that, good luck sorting the fantasy from the real; you will have screwed yourself over.
There is then a bunch of blather about how many people went through SERE training without ill-effects. This is irrelevant. The people taking SERE know it will end. They went to the course voluntarily. That’s not the case for a prisoner. He doesn’t know when it will end. He doesn’t know the people holding him won’t decide to just kill him.
Then comes the “definition” of torture. First they divorce the mental from the physical. Then they say that the acts they are being asked about aren’t the same as beatings with clubs or weapons, and don’t inflict, “severe” pain, and therefore they aren’t, ipso facto torture.
When they move on to the question of mental, they rationalise that, “pain and suffering,” are linked, so the suffering the waterboard causes isn’t torture, because it doesn’t involve pain (because no one is beating on the prisoner), and even that’s not a problem, because the pain and suffering have to be, “severe” to rise to the level of torture.
Even when all of these methods are considered combined in an overall course of conduct, they still would not inflict severe physical pain or suffering. As discussed above, a number of these acts result in no physical pain, others produce only physical discomfort. You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition. Accordingly, we conclude that these acts neither separately nor as part of a course of conduct would inflict severe physical pain or suffering within the meaning of the statute.
Got that. Neither separately, nor as a course of conduct.
What about that bugbear, “mental pain and suffering” (after all, I’d think being convinced one was being drowned, would count. The idea that my captors were trying to kill me slowly, I think I’d call that "suffering.”
Certainly, in light of what 18 U.S.C. § 2340(2) says:
(I) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) 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; (3) the threat of imminent death; or (4) the threat that any of the preceding acts will be done to another person. See 18 U.S.C. § 2340(2)(A)-{D).
They say it’s not a problem: the question is whether any of these acts, separately or as a course of conduct, constitutes a threat of severe physical pain or suffering, a procedure designed to disrupt profoundly the senses, or a threat of imminent death. As we previously explained, whether an action constitutes a threat must be assessed from the standpoint of a reasonable person in the subject's position.
Me... I’d say a reasonable person being held prisoner, abused, repeatedly half-drowned, forced to stay awake, bounced off walls designed to make it seem worse than it is (which is part of the design), all part of a system meant to convince the prisoner that his circumstances are not what they were, that, “the gloves are off,” might conclude that the threat of severe physical pain, or imminent death, was a distinct possibility.
Waterboarding is something they say does just that. But (you knew there was a but), because he doesn’t actually die, and the effects are transitory; and they aren’t, painful, they don’t count, because “profound mental harm” is, so they say, a predicate requirement of the act.
What it boils down to is them saying, unless you do ALL the things listed in 18 U.S.C. § 2340(2) (A)-{D), then it isn’t torture.
That gets us through the first memo (about 20 pages).
Memo number 2
Right at the start we see a problem. To avoid becoming a subject for the “enhanced” techniques the prisoner has to "provide information on actionable threats and location information on High-Value Targets at large-not lower-level information, for interrogators to continue with [this] neutral approach”
Right there is an institutional disaster. The only way to avoid being tortured is to give up information. If one doesn’t have the information, than one is doomed to be abused. The most willing “detainee” will not be believed, unless he has information about high value targets. This is defined as a “very high” standard.
What it actually is, is no standard. Everyone is presumed to be knowledgeable, and the only way to avoid being tortured to get at that knowledge is to have it to give up.
Honest ignorance will get you tortured. Devotion to the truth of one's ignorance will only "prove" that one is a die-hard fanatic. And "die-hard fanatics" need to be abused, so they will "give up" the information we knew they had. Catch-22.
The report just released about Zabudayah shows where that leads. Millions of dollars, and thousands (if not tens of thousands) of wasted man hours chasing false leads.
To get the prisoner to cooperate the neutral techniques are abandoned, and a “baseline state of dependence” is established: by stripping them naked, depriving them of sleep (while shackled) and manipulating their diet. This isn’t torture, no, it’s meant to "demonstrat[e] to the [detainee] that he has no control over basic human needs" and helping to make him "perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting
Heaven help the detainee who has no information to protect.
Why? Because the methods being used will teach him to lie. He will, in fact, have to lie. His comfort is dependant on his “cooperation": The insult slap is used "periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee's response or non-response... Another corrective technique, the abdominal slap, "is similar to the insult slap in application and desired result" and "provides the variation necessary to keep a high level of unpredictability in the interrogation process... a third corrective technique, the facial hold, "is used sparingly throughout interrogation. It is not painful; but "demonstrates the interrogator's control over the detainee... Finally, the attention grasp "may be used several times in the same interrogation"
In short, when one says something the interrogator doesn’t like, one gets smacked.
The only way to not get smacked is to tell the interrogator what he, or she, wants to hear.
If there is any doubt that this is what was (is?) going on: The interrogators remove the hood and explain that the detainee can improve his situation by cooperating and may say that the interrogators "will do what it takes to get important information." As soon as the detainee does anything inconsistent with the interrogators' instructions, the interrogators use an insult slap or abdominal slap. They employ walling if it becomes clear that the detainee is not cooperating in the interrogation. This sequence "may continue for several more iterations as the interrogators continue to measure the [detainee's] resistance posture and apply a negative consequence to [his] resistance efforts." The interrogators and security officers then put the detainee into position for standing sleep deprivation, begin dietary manipulation through a liquid diet, and keep the detainee nude (except for a diaper). The first interrogation session, which could have lasted from 30 minutes to several hours, would then be at an end.
The next session starts with a slap, and the process repeats itself, until the interrogators hear what they want to hear. This can go on for 30 days. If the subject continues to resist, it can be continued, until he breaks.
Which is no way to collect information.
The final grace note is the “detention conditions”
The CIA maintains certain “detention conditions" at all of its detention facilities. (These conditions "are not interrogation techniques,” and you have not asked us to assess their lawfulness under the statute.) The detainee is subjected to white noise, not to exceed 79 decibels, and to constant light during portions of the interrogation process."
They do admit there are some gray areas, in which the pattern of behavior might combine to make otherwise legal methods torturous:
Finally we emphasize that these are issues about which reasonable persons may disagree. Our task has been made more difficult by the imprecision of the statute and the relative absence of judicial guidance, but we have applied our best reading of the law to the specific facts that you have provided.
Absence of judicial guidance means that the courts haven’t decided what tortures are legal, and which are beyond the pale, which has made their task “more difficult,” but never fear, they applied their best reading of the law to it, and decided that, so long as there were doctors present, none of the things they are talking are likely to rise to the level of torture.
What they did (as is plain in one of the footnotes) is decide that “torture” wasn’t really defined, and there was no way to interpret it. This was useful. It allowed them to chop it up and make it legal. This, of course, flies in the face of the intent. Torture was broadly defined so that people couldn’t game the rules and say, “We didn’t chop his fingers off, we just scored his flesh with shallow cuts.”
Their best reading of the law.
Jesus wept.
The first two memos pretty much cover all we need to go over (after the first forty pages they become redundant, as they elaborate the various excuses, rationalisations, and "justifications" behind the answers they came up with. You can find them all here. You can find some legal commentary here at Law of War.org). The short answer to the questions the 'utilitarian', who wants to justify the use of torture, needs to ask: 1: does it get good information, 2: does it make the US, and her residents, safer, and 3: Does it further the overall agenda of the US in the "War on Terror"? is no, it does not.
So let's look at them, and see why.
Right at the front, in the second graf we see the largest part of the problem. "In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an "increased pressure phase."
The information they believed him to have. From the get-go that’s a red flag. One doesn’t interrogate to get confirmation. One interrogates to find out what the subject knows. The only confirmation one is ever looking for is not what one “believes” the source to know, but rather corroboration of things other sources have said.
Even that’s problematic. Going “fishing” for specific facts runs the risk of leading the source to the answers the interrogator is looking for. It’s a form of training, and leads to confirmation bias. (when one gets to the end of the memos, one finds that half of the reports the CIA filed in 2004 came as a result of just “a few” subjects. When just a few sources are the basis for more than 3,000 intelligence reports; in a single year, something is wrong).
The training starts when they begin to remove his, “expectations of treatment.” They lay out 10 techniques, designed in concert with the “Survival, Evasion, Resistance, Escape (SERE) training psychologist” they were working with. SERE isn’t meant to be a blueprint of “how-to”; it’s meant to show the students that torture can be used to break anyone. Even those who know they can actually get out. SERE is a form of the Milgram Experiment, writ small, and with more safeguards.
The ten things they outline are: ”(l) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6)wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard. You have informed us that the use of these techniques would be on an as-needed basis and that not all of these techniques will necessarily be used. The interrogation team would use these techniques in some combination to convince Zubaydah that the only way he can influence his surrounding environment is through cooperation. You have, however, informed us that you expect these techniques to be used in some sort of escalating fashion, culminating with the waterboard, though not necessarily ending with this technique.”
"Not necessarily ending with that technique." Nice to know that they aren’t planning things out so carefully. After they waterboard him, they might go to “the stand-up”. Every one of those techniques can be torture. Some of them are torture on their face (The Stand-up, Waterboarding, Cramped Confinement). The others might not be torture, but in this context (convincing him that his present “circumstances” are changed), they probably are.
The one which is most problematic and the one which most people in this line of work keep in the “gray area” is sleep deprivation.
Lack of sleep makes for odd reactions. It reduces willpower. I’ve been sleep deprived, and done some strange things. I’ve had hypnogogic events. My personal feeling is that sleep-dep is less than useful.
If I were brought a source who’d not slept, I’d not refuse to question him. In that state he’d be less likely to recall any training he had against interrogation. The second thing I’d do is get him a meal, and a bed. Then I’d do my best to get enough sleep to be alert when I talked to him the next morning.
That’s not what they had planned.
Sleep deprivation may be used. You have indicated that your purpose in using this technique is to reduce the individual's ability to think on his feet and, through the discomfort associated with lack of-sleep, to motivate him to cooperate. The effect of such sleep deprivation will generally remit after one or two nights of uninterrupted sleep. You have informed us that your research has revealed that, in rare instances, some individuals who are already predisposed to psychological problems may experience abnormal reactions to sleep deprivation. Even in those cases, however, reactions abate after the individual is permitted to sleep. Moreover, personnel with medical training are available to and will intervene in the unlikely event of an abnormal reaction_ You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.
They didn’t plan to keep him awake for more than 11 days at a time. 11 days. I’ve never gone more than about 60 hours without sleep. That led to some of those “waking dream” states I mentioned. I wasn’t being forced to do it. It’s just the way the training went. If I’d been lower in the chain of command, I’d have gotten a couple of hours of sleep in that time, but I wasn’t, so I didn’t.
The other time I recall such events was in the middle of Basic Training. I’d been averaging about four hours of sleep a night, for about three weeks. Then I had a run of nights where events conspired to cut that to no more than three hours (or a couple of two-hour stretches). Next thing I knew I was reading about how to defend myself against chemical attack, while dreaming about something else at the same time. Deuced strange, and I’d rather not do it again, thanks. Eleven days at a time. Which implies they might let him sleep a few days, to allow “the effect of such sleep deprivation to remit”, and then do it again.
Which is stupid. One of the things sleep-dep does is blur the lines between real and unreal. When one is having hypnogogic events, one is in a dream state. Who among us hasn't awakened from a dream while slightly out of phase with the world? The rules are different in dreams. I don't want a source to be the victim of that sort of thing because he will believe things which aren't true. Which will come back to bite me in the ass, because when I repeat them to him they will become true; in his mind. After that, good luck sorting the fantasy from the real; you will have screwed yourself over.
There is then a bunch of blather about how many people went through SERE training without ill-effects. This is irrelevant. The people taking SERE know it will end. They went to the course voluntarily. That’s not the case for a prisoner. He doesn’t know when it will end. He doesn’t know the people holding him won’t decide to just kill him.
Then comes the “definition” of torture. First they divorce the mental from the physical. Then they say that the acts they are being asked about aren’t the same as beatings with clubs or weapons, and don’t inflict, “severe” pain, and therefore they aren’t, ipso facto torture.
When they move on to the question of mental, they rationalise that, “pain and suffering,” are linked, so the suffering the waterboard causes isn’t torture, because it doesn’t involve pain (because no one is beating on the prisoner), and even that’s not a problem, because the pain and suffering have to be, “severe” to rise to the level of torture.
Even when all of these methods are considered combined in an overall course of conduct, they still would not inflict severe physical pain or suffering. As discussed above, a number of these acts result in no physical pain, others produce only physical discomfort. You have indicated that these acts will not be used with substantial repetition, so that there is no possibility that severe physical pain could arise from such repetition. Accordingly, we conclude that these acts neither separately nor as part of a course of conduct would inflict severe physical pain or suffering within the meaning of the statute.
Got that. Neither separately, nor as a course of conduct.
What about that bugbear, “mental pain and suffering” (after all, I’d think being convinced one was being drowned, would count. The idea that my captors were trying to kill me slowly, I think I’d call that "suffering.”
Certainly, in light of what 18 U.S.C. § 2340(2) says:
(I) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) 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; (3) the threat of imminent death; or (4) the threat that any of the preceding acts will be done to another person. See 18 U.S.C. § 2340(2)(A)-{D).
They say it’s not a problem: the question is whether any of these acts, separately or as a course of conduct, constitutes a threat of severe physical pain or suffering, a procedure designed to disrupt profoundly the senses, or a threat of imminent death. As we previously explained, whether an action constitutes a threat must be assessed from the standpoint of a reasonable person in the subject's position.
Me... I’d say a reasonable person being held prisoner, abused, repeatedly half-drowned, forced to stay awake, bounced off walls designed to make it seem worse than it is (which is part of the design), all part of a system meant to convince the prisoner that his circumstances are not what they were, that, “the gloves are off,” might conclude that the threat of severe physical pain, or imminent death, was a distinct possibility.
Waterboarding is something they say does just that. But (you knew there was a but), because he doesn’t actually die, and the effects are transitory; and they aren’t, painful, they don’t count, because “profound mental harm” is, so they say, a predicate requirement of the act.
What it boils down to is them saying, unless you do ALL the things listed in 18 U.S.C. § 2340(2) (A)-{D), then it isn’t torture.
That gets us through the first memo (about 20 pages).
Memo number 2
Right at the start we see a problem. To avoid becoming a subject for the “enhanced” techniques the prisoner has to "provide information on actionable threats and location information on High-Value Targets at large-not lower-level information, for interrogators to continue with [this] neutral approach”
Right there is an institutional disaster. The only way to avoid being tortured is to give up information. If one doesn’t have the information, than one is doomed to be abused. The most willing “detainee” will not be believed, unless he has information about high value targets. This is defined as a “very high” standard.
What it actually is, is no standard. Everyone is presumed to be knowledgeable, and the only way to avoid being tortured to get at that knowledge is to have it to give up.
Honest ignorance will get you tortured. Devotion to the truth of one's ignorance will only "prove" that one is a die-hard fanatic. And "die-hard fanatics" need to be abused, so they will "give up" the information we knew they had. Catch-22.
The report just released about Zabudayah shows where that leads. Millions of dollars, and thousands (if not tens of thousands) of wasted man hours chasing false leads.
To get the prisoner to cooperate the neutral techniques are abandoned, and a “baseline state of dependence” is established: by stripping them naked, depriving them of sleep (while shackled) and manipulating their diet. This isn’t torture, no, it’s meant to "demonstrat[e] to the [detainee] that he has no control over basic human needs" and helping to make him "perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting
Heaven help the detainee who has no information to protect.
Why? Because the methods being used will teach him to lie. He will, in fact, have to lie. His comfort is dependant on his “cooperation": The insult slap is used "periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee's response or non-response... Another corrective technique, the abdominal slap, "is similar to the insult slap in application and desired result" and "provides the variation necessary to keep a high level of unpredictability in the interrogation process... a third corrective technique, the facial hold, "is used sparingly throughout interrogation. It is not painful; but "demonstrates the interrogator's control over the detainee... Finally, the attention grasp "may be used several times in the same interrogation"
In short, when one says something the interrogator doesn’t like, one gets smacked.
The only way to not get smacked is to tell the interrogator what he, or she, wants to hear.
If there is any doubt that this is what was (is?) going on: The interrogators remove the hood and explain that the detainee can improve his situation by cooperating and may say that the interrogators "will do what it takes to get important information." As soon as the detainee does anything inconsistent with the interrogators' instructions, the interrogators use an insult slap or abdominal slap. They employ walling if it becomes clear that the detainee is not cooperating in the interrogation. This sequence "may continue for several more iterations as the interrogators continue to measure the [detainee's] resistance posture and apply a negative consequence to [his] resistance efforts." The interrogators and security officers then put the detainee into position for standing sleep deprivation, begin dietary manipulation through a liquid diet, and keep the detainee nude (except for a diaper). The first interrogation session, which could have lasted from 30 minutes to several hours, would then be at an end.
The next session starts with a slap, and the process repeats itself, until the interrogators hear what they want to hear. This can go on for 30 days. If the subject continues to resist, it can be continued, until he breaks.
Which is no way to collect information.
The final grace note is the “detention conditions”
The CIA maintains certain “detention conditions" at all of its detention facilities. (These conditions "are not interrogation techniques,” and you have not asked us to assess their lawfulness under the statute.) The detainee is subjected to white noise, not to exceed 79 decibels, and to constant light during portions of the interrogation process."
They do admit there are some gray areas, in which the pattern of behavior might combine to make otherwise legal methods torturous:
Finally we emphasize that these are issues about which reasonable persons may disagree. Our task has been made more difficult by the imprecision of the statute and the relative absence of judicial guidance, but we have applied our best reading of the law to the specific facts that you have provided.
Absence of judicial guidance means that the courts haven’t decided what tortures are legal, and which are beyond the pale, which has made their task “more difficult,” but never fear, they applied their best reading of the law to it, and decided that, so long as there were doctors present, none of the things they are talking are likely to rise to the level of torture.
What they did (as is plain in one of the footnotes) is decide that “torture” wasn’t really defined, and there was no way to interpret it. This was useful. It allowed them to chop it up and make it legal. This, of course, flies in the face of the intent. Torture was broadly defined so that people couldn’t game the rules and say, “We didn’t chop his fingers off, we just scored his flesh with shallow cuts.”
Their best reading of the law.
Jesus wept.