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April 17, 2009

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So I'm wondering: didn't it occur to anyone to ask the OLC whether sensory deprivation was a form of torture? If so, where's that memo? And if not, why not?

The process was rigged so that the questions would elicit the desired responses. If waterboarding, slapping and slamming people against walls wasn't "torture," then clearly sensory deprivation wasn't even worthy of consideration.

The administration's response to the memos so far is pure political expedience. It is retroactively suspending the application of federal and international laws prohibiting torture during the period 9/12/01 to 1/19/09. It will be hard for anyone to take the U.S. seriously again when its leaders pontificate about human rights. "Good faith" reliance on legal opinions has never been a defense to torture.

These memos demonstrate how the law completely breaks down when practiced with intellectually dishonesty. Our legal tradition has been structured to handle that problem through the adversary process -- that your opponent then mocks your obvious dishonesty. But there is no effective check on dishonesty in this administrative context, other than prosecution for lawbreaking and political fall-out.

Sadly, here is the opening line from Wikipedia about one of the torture memo authors, Jay Bybee:

Jay Scott Bybee (born October 27, 1953 in Oakland, California) is a federal judge on the United States Court of Appeals for the Ninth Circuit. He has published numerous articles in law journals and taught law school; his primary interests are in constitutional and administrative law.

Someone now is such a high judicial office vomited out this legal crap despite his self-professed interest in constitutional and administrative law.

The broader context which has been visible in outline for some time now and which these memos are helping to fill in the details regarding, is that key members of the Bush admin. conceived of torture as consisting only of techniques which cause visible and objectively undeniable damage to the corporeal body of the victim. Anything which is done to the mind of the victim only, or primarily to the mind of the victim while inflicting somewhat lesser corporeal damage, is in their frame of reference "not torture".

What to them constituted "real" torture is only a subset of the variety of techniques which can be used to coerce victims, break their will, and/or allow interrogators to indulge their taste for sadism. We know this because extensive testimony from the victims of the totalitarian regimes of the 20th Cen. has shown that other more subtle techniques (such as sleep deprivation) which leave behind less in the way of visibly obvious evidence can be just as effective as more medieval forms of torture. This was particularly important under circumstances where the torturers needed to pretend that they were not really torturing, either to satisfy some twisted set of scruples for purposes of ideological validation, or because the victims needed to presentable in a public forum (e.g. the Moscow show trials of the 1930s).

Consequently we now have a rather large body of knowledge about how to torture somebody without causing obvious bodily damage, and it is this information which the Bush admin. exploited so as to maintain the legalistic and PR fiction that "the US does not torture" while going about their dirty business.

The moral of the story so far as I'm concerned is that if we are doing anything, anything at all, that cribs from the knowledge and experience of the NKVD, the Gestapo or other such filth, or which sounds like something plagiarized from the pages of Orwell, then we've crossed a line which should never, ever be crossed, no matter how lawyers may parse the language or chop the logic of what is being done, or what name we choose to label a dirty and shameful act. We should judge what constitutes "torture" not by some arcane parsing of legalistic language, but by the past company we are keeping, by who has used these techniques before and for what purposes. If the NKVD, et. al. did it, don’t go there. That may seem simplistic, but moral clarity demands nothing less, IMHO.

Jack Bauer doesn't seem so fictional after all.

Amidst all the years of obfuscation and legal parsing, the Third Geneva Convention has set a clear standard for treatment of prisoners: "No physical or mental torture, nor any other form of coercion," can be used to extract information.

It's worth noting that some of the techniques described in the memos are routinely used in the federal prison system, including prolonged periods in solitary confinement (another form of sensory deprivation).

There's a point where the use of torture to extract information is merely a pretext for sadism, vengeance and intimidation.

With Somali pirates holding dozens of hostages, what moral highground do we have in regard to how they treat them?

Someone now is such a high judicial office vomited out this legal crap despite his self-professed interest in constitutional and administrative law.
Why "despite"? It just says he's interested in Con Law, without specifying whether he's interested in supporting or subverting it.

"Why not?"

Quick answer: because some types of sensory deprivation could be beneficial for the captive. Say, if he's mentally unstable or hopelessly frightened of everything, it might be more humane to leave the captive in a dark room for 20 hours than have him spend the same 20 hours in a room with other not-pleasant captives.

Meaning: it's a hard one to consider. Best for the lawyers to spend their careers exonerating acts of obvious torture. More efficient that way :/

I still think they should answer the question, though, when asked, even if it's a complicated answer.

This footnote (in Bradbury May 10 2005) may not relate specifically to sensory deprivation, but it's relevant to the world of things that might not be covered in the memos:

3 The CIA maintains certain "detention conditions" at all of its detention facilities. (These conditions "are not interrogation techniques," id. at 4, and you have not asked us to assess their lawfulness under the statute.)

I believe sensory deprivation was addressed somewhat obliquely in footnote 3 of the May 10, 2005 memo. Although the CIA did not ask for an opinion on the legality of exposing detainees to constant "white noise/loud sounds" and "constant light," and although the OLC purported not to address its lawfulness, it parroted the CIA's proferred justficiations for the practice and "noted" that the CIA had provided materials indicating that this form of sensory deprivation was harmless ("no risk of permanent hearing loss" caused by the white noise and "fairly quick[ ]" adaptation to the constant light).

Quick answer: because some types of sensory deprivation could be beneficial for the captive. Say, if he's mentally unstable or hopelessly frightened of everything, it might be more humane to leave the captive in a dark room for 20 hours than have him spend the same 20 hours in a room with other not-pleasant captives.

Meaning: it's a hard one to consider. Best for the lawyers to spend their careers exonerating acts of obvious torture. More efficient that way :/

Right. And because we might need to have a doctor pump a prisoner full of drugs to treat some medical condition, we'd better not forbid interrogators from using drugs on their prisoners. And since prisoners might need surgery, shouldn't we shy away from forbidding interrogators from making the odd incision? After all, these are hard ones to consider. Best for the lawyers to spend their careers exonerating acts of obvious torture. More "efficient" that way...

...I'll concede that my slippery-slope snark is somewhat out of line above, as the tools in question would never have bothered to consider the parallels that such thin reasoning would have raised.

Ugh. These memos... just... ugh.

Consequently we now have a rather large body of knowledge about how to torture somebody without causing obvious bodily damage, and it is this information which the Bush admin. exploited so as to maintain the legalistic and PR fiction that "the US does not torture" while going about their dirty business.

Consequently? I don't think so.

The Bush administration is only the latest administration to exploit this large body of information. Every U.S. administration since Truman's has actively supported and funded U.S. research into "touchless" torture. Every one has supported the funding and training of the military, police, secret police, and paramilitaries of favored clients in torture techniques.

We didn't learn it all from the eeevil Rooskies, or the Nazis, or the robotic North Koreans, or those hot-blooded Latins in the southern hemisphere, or those perhaps over-passionate French. We've done more than all those regimes combined to spread torture techniques, equipment, and the willingness to use them around the world.

One again, let me recommend Alfred McCoy's A Question of Torture and Darius Rejali's Torture and Democracy to anyone who is serious about facing the realities of U.S. torture.

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