More Things That Are Missing

by hilzoy

A couple of other things that are missing from the torture memos:

First, the memos cite various legal precedents for the definition of torture. They are particularly fond of Mehinovic v. Vuckovic, which involved "a course of conduct that included severe beatings to the genitals, head, and other parts of the body with metal pipes and various other items; removal of teeth with pliers; kicking in the face and ribs; breaking of bones and ribs and dislocation of fingers; cutting a figure into the victim's forehead; hanging the victim and beating him; extreme limitations of food and water; and subjection to games of 'Russian Roulette'." (p. 24; the details of this case are repeated on four separate occasions in this memo alone, like an incantation.)

Isn't it strange, then, that not a single one of the cases in which the United States has prosecuted people for waterboarding turns up in these memos? You'd think they might be apposite. Oddly enough, though, Steven Bradbury didn't think to include them.

Second: As I noted last night, under the US Code, an important issue in determining whether something counts as producing "severe mental pain or suffering" is whether it produces "prolonged mental harm". In discussing this question, especially with regard to sleep deprivation and waterboarding, Steven Bradbury spends a lot of time discussing the scientific literature on these topics. 

And yet, once you think about it, he had a much better source of information available to him. These memos were written in May, 2005. The CIA had been using these "methods of interrogation" for nearly three years. Moreover, the memos fall all over themselves describing the repeated psychiatric evaluations that detainees are given: 

"Prior to interrogation, each detainee is evaluated by medical and psychological professionals from the CIA's Office of Medical Services ("OMS") to ensure that he is not likely to suffer any severe physical or mental pain or suffering as a result of interrogation." (p. 4)

Bradbury then quotes the OMS' guidelines:

"[T]echnique-specific advance approval is required for all "enhanced" measures, and is 'conditional on on-site medical and psychological personnel confirming from direct detainee examination that the enhanced technique(s) is not expected to produce "physical or mental pain or suffering"'. As a practical matter, the detainee's physical condition must be such that these interventions will not have lasting effect, and his psychological state strong enough that no severe psychological harm will result." (p. 4)

Moreover:

"Medical and psychological personnel are on-scene throughout (and, as detailed below, physically present or otherwise observing during the application of many techniques, including all techniques involving physical contact with detainees), and "[d]aily physical and psychological evaluations are continued throughout the period of [enhanced interrogation technique] use." (p. 5; square brackets in the original.)

With all those psychological workups having been conducted on CIA detainees over a period of nearly three years, one might think that the CIA, and specifically its Office of Medical Services, would have lots of information on whether or not the techniques under discussion actually did produce any "prolonged mental harm." And yet, strange to say, the memos don't mention any evidence at all about the effects of these techniques on CIA detainees*.

It's pretty strange that the CIA had all that data about the psychiatric effects of its interrogation techniques ready to hand, and yet no one mentions it.

Or then again, maybe not.

* This is particularly striking in the case of Abu Zubaydah, whose psychiatric condition is described at considerable length in the August 1, 2002 memo. As Emptywheel has noted, the description of Abu Zubaydah in the memos is completely different from the FBI sources quoted by Ron Suskind -- they called him "certifiable". But let's pretend we don't know that, and ask: given the 2002 memo's extensive description of Abu Zubaydah, and given that he was the detainee on whom these techniques had been used the longest, wouldn't it be natural for Bradbury to explain what dazzling psychological health he was enjoying several years after the CIA had begun using "enhanced techniques" on him?

On reflection, though, maybe using Abu Zubaydah as a poster child for the benignity of the CIA's methods would not have been such a good idea:

"The sadistic treatment of Abu Zubayda also seems to have affected him psychologically in bizarre ways. Two sources said that he became sexually obsessive, masturbating so much his captors feared he would injure himself. One described him as acting "like a monkey at the zoo." A physician was called in for consultation -- one of many instances in which health professionals have played truly disturbing roles in this program."

Comments

[kid bitzer]

you've presented an enthymeme here, but given how contentious this topic is, it might be wiser to be more explicit.

is something like this the chain of thought?

1 bradbury wants to argue that these forms of torture aren't torture;
2 he does so in part by denying they cause chronic psychological damage;
3 but he cites no evidence that the people that the u.s. was torturing escaped psychological damage;
4 he does claim that there were mental health professionals in place monitoring the victims' mental status;
5 if that monitoring had shown a lack of damage, then he could have strengthened his argument by introducing post-torture monitoring data;
6 therefore, his failure to cite it shows that the monitoring did not reveal a lack of psychological damage, or even shows that the monitoring revealed damage.

is that it, more or less?

i'm not trying to be snarky or critical, i just want you to be a little more explicit. i think you have another really good point here, but it is hard to be sure which point you're making.

("then again, maybe not" is too much like "figure it out yourself, dummy, i'm not going to draw the conclusion for you. " which is fine and stylish snark for ordinary topics, but unwise for high-stakes topics. and the stakes don't get higher than this. thanks for all your good work on this topic.)

[dmbeaster]

kid blitzer:

This is a post mostly about the intellectual dishonesty of the alleged legal justification in the memos for the use of "enhanced interrogation."

It is the sort of thing that is tangential somewhat to the actual horrors of the torture itself, but is the back-story on how it is able to go forward in a nation that pretends to be guided by laws. But the rule of law means nothing when basic logical principles of reason can be ignored in this manner.

[rea]

My head hurts at the treatment of Mehinovic v. Vuckovic. The reasoning seesm to be that the eplaintiffs in that case were tortured, so if what we do to our prisoners is a hair less than what was done to the plaintiffs in Mehinovic v. Vuckovic, we can't be liable for having tortured people, can we?

It's the old "we're not quite as bad as Hitler or Stalin" meme being transformed into alleged legal reasoning.

[Ben Alpers]

It's the old "we're not quite as bad as Hitler or Stalin" meme being transformed into alleged legal reasoning.

If I'm understanding the memo's use of Mehinovic, it's also an example of the logical fallacy of denying the antecedent.

[Jay C]

Another thing which I have noticed has turned up missing in the recent torture-memo brouhaha is much, if any, mention (AFAICT) in any degree of abusive treatment meted out by the CIA (or other US agencies) to anyone other than Abu Zubeydah.

Making him the "poster child" for the torture controversy seems to me to have been chosen deliberately: and deliberately to attempt to exculpate the CIA (and the USG in general) of responsibility for unconscionably [illegally] abusing prisoners. As Abu Z. actually IS a known Al Qaeda terrorist did, someone figure that the American public would most likely react to evidence of him being maltreated with, at best, a shrug, if not outright approbation?

The treatment given Abu Zubeydah was atrocious, but one has to wonder if there weren't any actual innocents out there (and pace Dick Cheney*, we know that US dragnets for "terrorists" didn't always exclusively nab "bad people") who have been tortured just as badly?

* "pace", of course, is a euphemism: in respect of OW posting rules, it replaces Dick Cheney's favorite expletive

[Sven]

John Cook at Gawker (!) has an interesting "Duh, why didn't I think of that?" hypothesis: that the methods in and of themselves were not intended to elicit information; rather, the whole program was designed to bluff prisoners into believing they would be murdered (which as he points out, is a predicate act of torture).

That casts the justifications in a different light: "it's not really torture, it's just playacting." It also helps explain the epic freakout over the memos' revelation. It's not that they exposed the brilliant "bug in a box" technique, it's that they exposed the bluff.

[hilzoy]

Jay C: I think there's a different explanation for that. Abu Z. was the first detainee they used these methods on. Thus, the Bybee memo is about him: he's the case in which this came up. The Bradbury memos, by contrast, do mention specific people, but their names are blacked out. But they are not directed at resolving questions about a single case, and moreover, as I noted here, they tend to stay away from any detailed account of what has happened to specific individuals, Abu Z. included.

[GHB]

This comment might relate more to your previous post on the topic but I think it's relevant here.

From Andrew Sullivan:

The legal limits were designed to maximize the torture while minimizing excessive physical damage, to take prisoners to the edge while making sure, by the use of medical professionals, that they did not die and would not have permanent injuries.

I think Andrew is almost right. The legal limits were designed not to minimize physical damage, but to give the appearance that they were designed to minimize physical damage. This became abundantly clear to me after reading some of the tortured (no pun intended!) treatment of the "science" cited in the memos.

I think the distinction is important because it shows these memos do not represent a sincere but misguided attempt to strengthen our intelligence capabilities. Rather, from the outset, they were designed to undermine the basic principles from which the proscriptions of torture were derived.

[Nell]

The U.S. public has a vast ignorance of what torture is, why it is used, and of the extent of our government's history of involvement with it.

Most people don't appreciate that there is such a thing as psychological ("touchless") torture. Even among those who grasp that non-physical torture is torture, very few understand the extent and lasting nature of the damage it does.

Most people accept that torture is employed in an effort to obtain genuine information. It is not. The connection with legitimate interrogation is useful for propaganda purposes, which is why the Nazis and the Bush administration alike chose "enhanced interrogation techniques" as the preferred euphemism.

Most people, even those who are old enough to know better, have shut their eyes to the U.S. government's long history of development and widespread, systematic application of torture techniques: the decades of post-1947 CIA research; the training of client state military, police, and paramilitaries in the techniques; and the implementation by the military on a large scale with the CIA in the Phoenix program during the Viet Nam war.

Democracies torture, especially when faced by threats to imperial undertakings. Torture always comes home from "over there".

Torture is an ever-present possibility in every situation in which people are given enormous power over others without constant and active oversight: prisons, police stations, nursing homes, mental hospitals, fraternities, children's camps...

State torture -- torture initiated and condoned from the top -- is the most corrosive and dangerous of all, because it inevitably corrodes and twists the foundations of lawful and democratic functioning. (This is the point that Sen. Whitehouse makes about the OLC memos in the video I "transcribed" in a previous thread.)

[Gary Farber]

"Most people, even those who are old enough to know better, have shut their eyes to the U.S. government's long history of development and widespread, systematic application of torture techniques"

Here's the link I'd offer for everyone, Nell.

[Warren Terra]

Another thing which I have noticed has turned up missing in the recent torture-memo brouhaha is much, if any, mention (AFAICT) in any degree of abusive treatment meted out by the CIA (or other US agencies) to anyone other than Abu Zubeydah.

Jay C, did you miss the longer version of the press coverage of the recently leaked ICRC report, which includes torture inflicted on people other than Abu Zubaydah and using the same methods? Did you miss the accounts of the treatment given to Binyam Mohamed or to Maher Arar at the behest of our government, keeping in mind that in the case of Mohamed the man remained effectively within our control the entire time (and subsequently wound up at Gitmo) and that it has at least been alleged that our agents supervised the dissection of his scrotum, making it one of several cases of extraordinary rendition in which extraordinarily inhumane methods of torture were used while people alleged to be Americans watched?

[Nell]

Thank you, Gary. A very good starting point, and McCoy's book is there for those who want to go further.

[stonetools]

Hey, its pretty clear that the memo writers were bending over backward to define as non coercive methods that were definitely coercive, but lets face it-do we KNOW whether we can effectively interrogate hardened terrorists without resorting to more than "establishing a relationship with them" , which is pretty much as far as Amnesty International is prepared to go.?

I know that the standard liberal approach is that we can simply talk these guys into giving us actionable intelligence, but hey, even Obama is hedging his bets on that, asking for a commission to look intro the matter. What if the commission comes back recommending that special techniques be available beyond the Army Field Manual? Will Obama's lawyers be writing similar memos in 6-9 months?

[Gary Farber]

I don't care if pulling fingernails out, or engaging in sleeplessness and stress positions, were effective techniques to gain information, because if my country is going to act like the Gestapo or the KGB, this is no longer a country I wish to be a part of.

I'll never endorse Nazi tactics, no matter how effective they might turn out to be.

Maybe other people want to live in a country protected by a Gestapo, but, you know, then they'd be living in an evil country.

We fought WWII to overthrow such evil: not to become it.

If we adopt such techniques, or stand by them, that war would have been fought for nothing.

(I don't think such methods are particularly effective, but that's an entirely different point.)

[Gary Farber]

I don't care if pulling fingernails out, or engaging in sleeplessness and stress positions, were effective techniques to gain information, because if my country is going to act like the Gestapo or the KGB, this is no longer a country I wish to be a part of.

I'll never endorse Nazi tactics, no matter how effective they might turn out to be.

Maybe other people want to live in a country protected by a Gestapo, but, you know, then they'd be living in an evil country.

We fought WWII to overthrow such evil: not to become it.

If we adopt such techniques, or stand by them, that war would have been fought for nothing.

(I don't think such methods are particularly effective, but that's an entirely different point.)

[Warren Terra]

Oh, and for anyone who still thinks the point of torture is information (rather than the point of torture being torture), there's this, via.

The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah. IG Report at 90, and 183 times during March 2003 in the interrogation of KSM, see id. at 91.

But I'm sure the information gleaned from the first hundred times led them to get most of the way into the second hundred.

[Anne E]

Something else I want to know- Khalid Sheikh Mohammed's two children- then ages six and eight- were taken into custody either by the US or the Pakistanis working closely with the US. As far as I can tell (and I've been watching for this information) they have not been released and no one knows where they are.

There have been credible allegatons (see Wikipedia) that the children were abused either to find out where their father was or to put pressure on him once captured.

I'm a child abuse survivor myself. I do not want my government abusing children under any circumstances.

I really wish I did not have to worry that some Bushie has decided that US national security requires that these children never be released alive. But I do worry just that.

[efgoldman]

@ gary farber 6:56 pm

very, very well said sir.

definitely a "wish i'd said that."

but i'm glad you did.

[cofax]

A military veteran with sixteen years' experience conducting interrogations reads and comments on the OLC memos, here:
http://pecunium.livejournal.com/395572.html

Among the issues he points out is that prolonged sleep deprivation makes the boundary between reality and fantasy blur for the victim; of what use then is anything subject says? How can it be relied upon?

He also points out that the interrogations were structured to punish the subjects when they failed to produce information. So the innocent, who had no information, were induced to fabricate it in order to stop the abuse.

Worth reading.

[gwangung]

Among the issues he points out is that prolonged sleep deprivation makes the boundary between reality and fantasy blur for the victim; of what use then is anything subject says? How can it be relied upon?

No doubt the "interrogators" were cherry picking results out of the literature. It's all they CAN do, when it comes to arguing their position (see creationist "arguments").

[Nell]

@cofax: Of what use then is anything [the] subject says?

It makes a dandy new "terror threat" with which to frighten the citizenry, cow the Congress, extract more money for cronies' worthless "homeland security" contracts, justify the kidnaping, imprisonment, and torture of more Others. It's much better than real information, because it can be whatever you want it to be.

That's what torture is for.

[CaseyL]

It makes a dandy new "terror threat" with which to frighten the citizenry, cow the Congress, extract more money for cronies' worthless "homeland security" contracts, justify the kidnaping, imprisonment, and torture of more Others. It's much better than real information, because it can be whatever you want it to be.

Then why did it stop working?

NOTE: I'm not disagreeing with Nell. The more we learn about Bush-Cheney et al., the more we realize they were nothing more than a collection of sociopaths who, in Bush's own words, "never stop thinking about new ways to harm our country," and the more we learn how Congress and the mass media enabled them every step of the way.

But it did stop working. Not soon enough (the bastards should have been impeached and thrown out of office (and into prison) after 9/11, not (re)elected to a second term); and not completely enough (30% of the public still supports them).... but enough to end monolithic GOP rule in 2006, and end GOP rule altogether in 2008.

Yet still: the GOP's vast structural advantages - notably in how well the mass media repeated and reinforced its propaganda - did eventually fail.

Why?

Other countries which have opted to follow brutal, corrupt fascists tend not to pull themselves out of the downward spiral. Even economic ruin tends more to solidify such regimes' hold on power rather than break it. Usually nothing less than losing an armed conflict (e.g., Nazi Germany; Peronist Argentina) or the death of the leadership (Francoist Spain) breaks the cycle.

What was different this time?

This is a genuine question. Is there such as thing as "basic American decency" that had finally had enough? Was it the cumulative effect of enough fiascos (Iraq, Katrina, Terri Schaivo) the GOP couldn't paper over quickly or completely enough? Is it simply that the GOP's chief demographic of support is becoming smaller and more isolated?

It's important to know, because the sponsors and beneficiaries of Bush-Cheney haven't gone away, nor have they given up. They want all that power back, and they don't care what damage they do to get it back. We need to know how they failed despite having so many institutional and structural advantages, so we'll have some idea how to do it again next time.

[Nell]

CaseyL: Why did it stop working? Was it the cumulative effect of enough fiascos (Iraq, Katrina, Terri Schaivo) the GOP couldn't paper over quickly or completely enough? Is it simply that the GOP's chief demographic of support is becoming smaller and more isolated?

Both of those are factors, especially the first.

When people are being held in line with lies and fear, but enough other people see through them and say so loudly, then when the facade does begin to crumble it comes down quickly. Remember how polarized the country was in 2004, and how close the election was (in electoral college terms; the right's regional base provided the popular margin)?

Now is 'next time'. Speak the truth; don't be afraid to push Obama and Congress to do what's right. Don't be afraid to talk with your co-workers and family and friends who are reachable (don't waste time with 30-per-centers).

[Devon]

It's worth noting for the irony alone that Mehinovic was a case brought by the Center for Constitutional Rights, the group that also brought Rasul v. Bush and a host of other cases over unlawful detention and torture. Kemal Mehinovic and the other defendants were also held without legal basis, in Bosnia during that war.