Legal Commentary

A Comment and a Question about the Investigation Into the Yoo/Bybee Torture Memos

By Orin Kerr

I?ve mostly stayed out of the debate over whether John Yoo and Jay Bybee should be disciplined by DOJ for the so-called torture memos.    I?ve read some news reports, and followed the issues a little bit, but I haven?t devoted nearly the number of hours to this issue that I would need to in order to blog helpfully about them.  But I did have one comment and one question on the recent reports and debate about the memos and their ramifications.

1. The Comment. I would really really like to know what happened to John Yoo?s e-mails authored when he was writing the memos.  I?ve long figured that Yoo?s e-mails would be the best way to figure out what he was thinking when he wrote the memos.  The e-mails could answer if he was acting in good faith or if he was just being entirely results-oriented.  And yet strangely, Yoo?s e-mails from that period are missing.   I personally find that very suspicious.  Who deleted those e-mails, and when, and why?  I would really like to know the answer to that.

2. The Question. My understanding is that the CIA authorized six techniques pursuant to the Yoo/Bybee memos.   According to ABC News, they are:

1. Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes them.

2. Attention Slap: An open-handed slap to the face aimed at causing pain and triggering fear.

3. Belly Slap: A hard open-handed slap to the abdomen. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor, for more than 40 hours

5. Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees Fahrenheit (10 degrees Celsius), while being regularly doused with cold water.

6. Waterboarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Material is wrapped over the prisoner?s face and water is poured over them.

I think we all agree that the memos were wrong in concluding that waterboarding did not satisfy the legal definition of torture that is provided in 18 U.S.C.  2340 ? ?specifically intended to inflict? to inflict ?the prolonged mental harm? caused by or resulting from:

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) 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;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality

Waterboarding seems to be pretty clearly forbidden under this definition, as it?s specifically intended to inflict the prolonged mental harm resulting from the threat of imminent death.  That is, the point is to so totally and completely freak out the person by what they see as their own imminent death that they?ll do anything to make it stop.  While the statute is quite vague in a number of its key terms, I think the only fair reading is that waterboarding is prohibited by it.

With that long lead-up, here?s my question:  Is there any consensus as to which of the other six techniques are also prohibited by this definition, and which ones are not?   If there is no consensus, are there at least recognized schools of thought on the issue?  I haven?t seen a lot of analysis of how these other techniques should be analzyed under the statutory language, but I would think that would be an important part of the overall debate.

N.B.: I?ll open comments for a bit because I would really like to know the answer to my question, but if things get out of control I?ll just close them up.

Full post as published by The Volokh Conspiracy on March 01, 2010 (boomark / email).