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Why Information about the Combination of Techniques is Essential--Death Can Result!

By Jack M. Balkin

In response to my previous post, defenders of the OLC torture memos repeat the assertion that when rendering their legal opinion the lawyers had information about the consequences of the interrogation practices. This information consisted of reports on SERE training exercises (training our soldiers to endure and resist torture) and various sleep deprivation studies.

While it is correct that OLC lawyers were told some of this information by the CIA (we don?t know in what volume or detail, and major questions exist about the applicability to real interrogations of information gleaned from training exercises), it is also true that they did not have any information on the effects of combining these techniques. We know this because Bradbury repeatedly tells us that he had no information about combined effects, and he admits that the consequences of combining techniques can be unpredictable and potentially dangerous.

Picture it: held awake in an upright position in chains for days on end, kept naked, confined in a box for hours, repeatedly slapped in the face and abdomen, pounded against the wall, kept in very cold, kept in the dark, and waterboarded?all while being threatened by the interrogators that they?ll ?do what it takes? to get the desired information. This is what the prisoners were subjected to (although only three were waterboarded, one prisoner 183 times).

It is necessary to have information about the combined effect of these pratices because their legality turns on whether they inflict severe physical or mental suffering on the prisoners (the standard in the anti-torture statute). Although OLC Bradbury explicitly acknowledges his lack of information about the combined effect of the interrogation practices, he nonetheless issued an official legal opinion that the interrogation practices were "legal". When drawing this conclusion, the OLC lawyers repeatedly utilized a standard lawyer?s rhetorical trick: turning ?there is no evidence of combined effects? into ?we have seen no evidence that the combined effect is harmful, so it?s okay.?

So what?s the big deal? This passage from the recently released U.S. Senate Report (p. 151-52) on detainee abuse helps provide the answer:

In December 2002, two detainees were killed while detained by CJTF-180 at Bagram. Though the techniques do not appear to have been included in any written interrogation policy at Bagram, Army investigators concluded that the use of stress positions and sleep deprivation combined with other mistreatment at the hands of Bagram personnel, caused or were directly contributing factors in the two homicides.

My point in repeating this passage is not to lay blame for these deaths on the OLC lawyers?let me clear about that?but rather to show that measuring the combined effects of these techniques?which were always used in combination?is essential in evaluating the legality of the interrogations.

The issue of combining techniques illustrates another rhetorical feint the OLC lawyers resorted to in their frequent emphasis on how careful the CIA was in setting limits on the interrogation. One of the safeguards touted by the OLC lawyers is that the CIA used the waterboard ?only in combination with two other techniques, dietary manipulation and sleep deprivation.? Indeed, the CIA suggests that the dietary manipulation (allowing only fluid intake with limited calories) is actually for the protection of the prisoners undergoing waterboarding to prevent them from choking on food morsels they might vomit up when strapped to the board.

This admirable self-restraint seems almost downright considerate of the CIA, until you see exactly what it means. In the following passage, OLC Bradbury grants legal sanction to this "restraint" (10 May memo):

The waterboard may be used simultaneously with two other techniques: it may be used during a course of sleep deprivation, and as explained above, a detainee subjected to the waterboard must be under dietary manipulation, because a fluid diet reduces the risks of the technique. Furthermore, although the insult slap, abdominal slap, attention grasp, facial hold, walling, water dousing, stress positions, and cramped confinement cannot be employed during the actual session when the waterboard is being employed, they may be used at a point in time close to the waterboard, including on the same day.

Oh. So the CIA promised not to slam the prisoner against the wall, put him in a box, and chain him upright in a standing position at the same moment that they are actually waterboarding him (never mind that it is impossible to do these at the same time), but they were free to (and did) inflict the full panoply of interrogation techniques on prisoners right before and right after waterboarding sessions. In my book?that?s using all of the techniques ?in combination.?

One can see the fully manipulative (bad faith) character of the legal reasoning in these memos only by reading them through. The legal memos are transparent exercises in issuing legal immunity to interrogators. Legal analysis had little to do with it.

If you think that is a harsh assessment, don't take my word for it. Here is OLC Jack Goldsmith's description of Bybee's memo (quoted in Senate Report p. 33), which Goldsmith officially withdrew as legally unsupportable:

[V]iolent acts aren't necessarily torture; if you do torture, you probably have a defense; and even if you don't have a defense, the torture law doesn't apply if you act under color of presidential authority. CIA interrogators and their supervisors, under pressure to get information about the next attack, viewed the [Bybee] opinion as a 'golden shield,' as one CIA offical later called it, that provided enormous comfort.

In a forthcoming post I will argue that the OLC lawyers were the critical players in the entire torture enterprise?in one respect more critical than the policy makers who approved the torture and more critical than the interrogators who carried it out.

Full post as published by Balkinization on April 23, 2009 (boomark / email).