“The Waterboard”

The ACLU has a bunch of new documents on water-boarding posted–including a very heavily redacted draft of the 2004 CIA OIG report on the CIA’s interrogation methods. The report is interesting for three reasons:

  • The way they refer to water-boarding
  • The timing
  • The rationale

The Waterboard

One of the very few things they’ve left unredacted (in all these heavily redacted documents) are the references to water-boarding. But they don’t use it as a verb, "to water-board." Rather, they almost always refer to it as "the waterboard."

The water board technique

interrogators administered [redacted] the waterboard to Al-Nashiri

interrogators used the waterboard on Khalid Sheykh Mohammad

Cables indicate that interrogators [redacted] applied the waterboard technique to Khalid Sheykh Mohammad

waterboard session of Abu Zubaydah

waterboard on Abu Zubaydah

The waterboard has been used on three detainees: Aby Zubaydah, Al-Nashiri, and Khalid Sheykh Mohammad

I don’t know why this bugs me so much, but it does. It really emphasizes the clinical and bureaucratic nature of this practices, and pretends that human beings are not the ones inflicting it.

The Timing

The ACLU refers to this as a "draft document," though there is nothing on what is visible on the cover page to suggest this wasn’t a final draft–so we can’t be sure whether the date on the report is the date when it was finally released.

Still, I find the date worthy of note: May 7, 2004. Here’s how that date works into the torture timeline:

April 7, 2004 (approximately): 60 Minutes II acquires photos authenticating Abu Ghraib story.

Mid-April, 2004: General Myers calls Dan Rather to ask him to delay story.

Mid-April, 2004: Taguba begins to brief officers on his report ("weeks" before his May 6 meeting with Rummy).

April 28, 2004: Hamdi and Padilla argued before SCOTUS. Paul Clement assures the Court that we don’t torture. 60 Minutes breaks Abu Ghraib story and proves he’s wrong.

May 2004 (within days after Abu Ghraib becomes public): CIA briefing for Addington, Bellinger, and Gonzales on torture tapes.

May 6, 2004: Taguba meets with Rummy, Wolfowitz, Cambone, Myers, and others

In the meeting, the officials professed ignorance about Abu Ghraib. "Could you tell us what happened?" Wolfowitz asked.


“Here I am,” Taguba recalled Rumsfeld saying, “just a Secretary of Defense, and we have not seen a copy of your report. I have not seen the photographs, and I have to testify to Congress tomorrow and talk about this.”

May 7, 2004: Rummy testifies before Congress on Abu Ghraib.

May 7, 2004: CIA OIG draft report on interrogation techniques. Though this document is heavily redacted, reports say the investigation found interrogation techniques constitute cruel and inhuman treatment.

May 10 2004: Sy Hersh’s Abu Ghraib story.

In other words, this draft of the report, at least, bears the same date as Rummy had to testify before Congress. And the report came out right in the middle of the panic over Abu Ghraib and probably early enough to be included in the May briefing of Addington, Bellinger, and Gonzales on the torture tapes.

They would have freaked out about this report in any case. But the timing of it surely exacerbated their panic.

The Rationale

As Doug Jehl reported at almost the same time as the torture tapes were destroyed, the report concluded that some of the interrogation methods might constitute cruel and inhuman treatment, and as such, violate the Convention against Torture.

A classified report issued last year by the Central Intelligence Agency’s inspector general warned that interrogation procedures approved by the C.I.A. after the Sept. 11 attacks might violate some provisions of the international Convention Against Torture, current and former intelligence officials say.

The previously undisclosed findings from the report, which was completed in the spring of 2004, reflected deep unease within the C.I.A. about the interrogation procedures, the officials said. A list of 10 techniques authorized early in 2002 for use against terror suspects included one known as waterboarding, and went well beyond those authorized by the military for use on prisoners of war.

The convention, which was drafted by the United Nations, bans torture, which is defined as the infliction of "severe" physical or mental pain or suffering, and prohibits lesser abuses that fall short of torture if they are "cruel, inhuman or degrading." The United States is a signatory, but with some reservations set when it was ratified by the Senate in 1994.

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

While the CIA isn’t showing us that part of the conclusion, it does show enough of the discussion on the legal issues surrounding the interrogation methods to show how they got to that conclusion. I find two parts of that discussion noteworthy.

First, after reviewing how the US interpreted Article 16 of the Convention–which prevents cruel, inhuman, or degrading treatment or punishment which do not amount to torture–to be limited to that "cruel, unusual, and inhumane treatment or punishment prohibited by the 5th, 8th, and/or 14th Amendments to the Constitution," it notes that:

Although the Torture Convention expressly provides that no exception circumstances whatsoever, including war or any other public emergency, and no order from a superior officer, justifies torture, no similar provision was included regarding acts of "cruel, inhuman or degrading treatment or punishment."

This suggests that one thing the OIG considered was whether this no exception provision would apply to the cruel and inhuman clause. After all, if it did, it would present trouble for all the Yoo Memos that invoke exceptional circumstances and Commander in Chief authority.

The report also notes that Yoo’s August 2002 did not consider whether any law–aside from the torture statute–relevant to the detention and interrogation of detainees outside of the US, suggesting that Yoo didn’t address these concerns about the Convention.

Then there’s the part I really like. The report uses the State Department’s own reporting to show that the techniques used by the US are considered offensive to the US:

Annual U.S. State Department Country Reports on Human Rights Practices have repeatedly condemned harsh interrogation techniques used by foreign governments.


[from the 2002 Report issued in March 2003] In a world marching toward democracy and respect for human rights, the United States is a leader, a partner and a contributor. We have taken this responsibility with a deep and abiding belief that human rights are universal. They are not grounded exclusively in American or western values. But their protection worldwide serves a core U.S. national interest.

The State Department Report identified objectionable practices in a variety of countries including, for example, patterns of abuse of prisoners in Saudi Arabia by such means as "suspension from bars by handcuffs, ad threats against family members … [being] forced constantly to lie on hard floors [and] deprived of sleep …." Other reports have criticized hooding and stripping prisoners naked.

In other words, the report uses our country’s own principled statements against torture techniques–precisely some of the ones we have used on detainees since 2001–to show that the US considers these practices to be objectionable.

Now, in spite of the fact that they’ve shown how the OIG arrived at its conclusion that these interrogation methods violated the Convention, they’ve still invoked some kind of secrecy rule in order to redact that bit.

I guess that’s the "we don’t want to admit we broke the law" FOIA exception.

18 replies
  1. klynn says:

    I guess that’s the “we don’t want to admit we broke the law” FOIA exception.

    If the judge cannot come to this conclusion upon seeing this set of FOIA documents, then the judge does not deserve to sit on the bench.

    At this point, if I were the judge, I would be telling the government that the burden of proof irt torture -or not, the redacted statements essentially, lies in the governments hands because it is evident violations of our own laws and international laws happened and redactions do not do squat to state otherwise. Anyway IANAL…

    At this point, redactions have NOTHING to do with national security and the docs need to be released clean.

    Since we are in criminal zone of sorts on this evidence, shouldn’t the judge be able to demand clean documents?

    I know, the Prez will sprinkle pixie dust…

    Great job on this post EW. What great investigating and connecting of facts to the larger context the past few days and years).

  2. AZ Matt says:

    They didn’t just break the rules of the Convention they ran a D-10 Caterpillar back-and-forth over it dozens of times. They are very wonderful examples of banality of evil. If they had been at Nuremberg they would have been convicted. They hide their words but they can’t hide their evil.

  3. RAMA says:

    “The waterboard has been used….”

    It’s all so passive. People aren’t to blame, it’s that darned waterboard. The problem is, these guys don’t even seem to believe their own rationalizations.

    To paraphrase the NRA, waterboards don’t torture people; people do. Everyone involved in this needs to have an appointment made for them at the Hague.

    • MarieRoget says:

      I don’t know why this bugs me so much, but it does. It really emphasizes the clinical and bureaucratic nature of this practices, and pretends that human beings are not the ones inflicting it.

      Trying to distance themselves from the reality of torture, of inflicting pain, even death on fellow humans- hence the clinical terminology & use of the passive voice. Dissociation, compartmentalization.

      These lines of dialog from The Good German:

      “This guy? Drove one of the gas vans. They’d load the Jews in back, run the exhaust inside. By the time they got where they were going, they were already dead. Very efficient. Driving to work, he killed more people than Al Capone in all his years in Chicago. But if you asked him, he isn’t a murderer, he’s a truck driver. And he still thinks that.”

      • RAMA says:

        I watched Judgment at Nuremberg on Memorial Day and suggested to my wife that perhaps the entire Bush “Administration” ought to be sentenced to watch it. Not that they’d learn anything, I suppose. When I was covering a village board meeting several years ago, the village attorney described one complainant about some problem or another as “often wrong but never in doubt.” Sort of fits the whole Bushie cabal right down to the ground.

  4. klynn says:

    Hey, could spoliation of evidence be argued?

    Crazy question, I know..

    AZMatt, like the D-10 Caterpillar reference…

  5. skdadl says:

    Why is it that “the water board” is one of the few things that is not redacted, that is allowed to stand out so blatantly in those black pages? Would that have something to do with the ACLU’s application (ie: we’re answering only the questions you asked)?

    • WilliamOckham says:

      That’s the only technique they’ve admitted to (and consequently declassified). All the rest of the CIA’s torture techniques are classified. Never mind that most of them are the same as the DOD torture techniques that are declassified.

  6. klynn says:

    Since we are addressing the Bush legacy of torture…this is a bit O/T but a very good read from the Asian Times

    A full-fledged cottage industry is already focused on those who eagerly await the end of the George W Bush administration, offering calendars, magnets and t-shirts for sale as well as counters and graphics to download onto blogs and websites. But when the countdown ends and Bush vacates the Oval Office, he will leave a legacy to contend with. Certainly, he wills to his successor a world marred by war and battered by deprivation, but perhaps his most enduring legacy is now deeply embedded in Washington-area politics – a Pentagon metastasized almost beyond recognition.


  7. JThomason says:

    “The waterboard”, “the rack”, “the cross”, each a phrase of martial exuberance and cruelty instinctually intended to elicit fear in all dimensions for the purposes of absolute imperial tyranny. The prospective reformation of the republic in the conflicted processes of competing violences presages only greater blood shed, decay and sorrow.

    The statutory imprimatur of the practice of drawing and quartering prisoners was stricken from the law books of the United Kingdom as recently as the 1820’s after all, not that the practice viably persisted until then. The shadows of “the ax” and “the guillotine” were of course of great corrective benefit in this light. Rudimentary liminal consciousness of the “death instinct” as an evolutionary benefit has not fully taken hold.

  8. alank says:

    I don’t know why this bugs me so much, but it does. It really emphasizes the clinical and bureaucratic nature of this practices, and pretends that human beings are not the ones inflicting it.

    OPERATORS OR VERBAL FALSE LIMBS. These save the trouble of picking out appropriate verbs and nouns, and at the same time pad each sentence with extra syllables which give it an appearance of symmetry. Characteristic phrases are render inoperative, militate against, make contact with, be subjected to, give rise to, give grounds for, have the effect of, play a leading part (role) in, make itself felt, take effect, exhibit a tendency to, serve the purpose of, etc., etc. The keynote is the elimination of simple verbs. Instead of being a single word, such as break, stop, spoil, mend, kill, a verb becomes a phrase, made up of a noun or adjective tacked on to some general-purpose verb such as prove, serve, form, play, render. In addition, the passive voice is wherever possible used in preference to the active, and noun constructions are used instead of gerunds (by examination of instead of by examining). The range of verbs is further cut down by means of the -ize and de- formations, and the banal statements are given an appearance of profundity by means of the not un- formation. Simple conjunctions and prepositions are replaced by such phrases as with respect to, having regard to, the fact that, by dint of, in view of, in the interests of, on the hypothesis that; and the ends of sentences are saved by anticlimax by such resounding commonplaces as greatly to be desired, cannot be left out of account, a development to be expected in the near future, deserving of serious consideration, brought to a satisfactory conclusion, and so on and so forth.

    From George Orwell: Politics and the English Language (orwell.ru)

  9. yonodeler says:

    If the mouth and nose covering and the water are not mentioned—much less coughing, spitting, and exclamations of distress—it’s as if the waterboard were just an office tool brought in to increase productivity and to improve the user experience—the users being the interrogators and their bosses.

  10. wavpeac says:

    Its the same with the word “theatre” for war times. It makes my husband yell every time big wigs of Bushco talk about the “theatre” of war.

    Really it’s a theatre?? What happened to the “front lines”?? That’s a good one. Or even the word “war” itself. The word “war” or “conflict” is sanitizing the same as the words “spanking”. We do sanitize our violent behavior in many ways which should be dead give away that their is a problem we don’t want to face or look at.

    There are so many words and so little time that would support the point.

    I think of Benjamin Whorf and the way we talk about violence certainly has cultural and social implications.

  11. R.H. Green says:

    “…pretends that human beings are not the ones inflicting it”. And denies thare’s any “inflicting” going on. There’s “applying”, “using”, and, whoohoo, “administering”. These are ways of avoiding talking about what is occurring, and I surmize the reason for this avoidance is that these folk are ashamed of what they did/do, or are afraid of it.

  12. selise says:

    i just started listening to today’s electric politics podcast. george kenney has interviewed larry wilkerson and they are discussing wilkerson’s understanding of what happened with the principles meetings etc. i’m only 20 min in (the interview is a little bit over an hour long), but it’s very good so far and kenney is one of my favorite interviewers. recommended.

    and i’ll just mention again another excellent and related recent interview kenney did with darius rejali.

  13. JohnLopresti says:

    Some history of the strength of US world citizenship with respect to prisoner fair treatment dates to an appropriation law Clinton signed in 1994 which also trimmed US propaganda budgets, one of his early initiatives. Predecessor Reagan had hassles with the UN, a narrative Clinton tried to modernize with greater integration and less showboating. I plan to read the new aclu foia batch of cia documents in text comparison with some of the early Yoo material, as well as the Kubark document archived in 2007. So far, the initial perusal looks like cia being tentative about being too credulous toward the patently specious 2002 proliferativeness of Yoo and Gonzales, irrespective of the preponderance of redacted blackholes in the currently available document set.
    On ew’s post’s title, nominalization is a modern speech trait for folks who eschew verbs.

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