The Bybee Memo Can’t Be Used for Good Faith Defense on Water-Boarding

The May 10, 2005 "Techniques" memo makes it clear that the torturers who claim the Bybee memo legalized their water-boarding of Khalid Sheikh Mohammed and Abu Zubaydah are wrong.

That’s because the torturers didn’t do what the memo authorized. In a footnote on page 41, it says:

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 ("[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is "for real–and is more poignant and convincing.") see also id. at 14 n14. The Inspector General further reported that "OMS contends that the expertise of the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe." Id at 21 n26. We have carefully considered the IG Report and discussed it with OMS personnel. As noted, OMS input has resulted in a number of changes in the application of the waterboard, including limits on frequency and cumulative use of the technique. Moreover, OMS personnel are carefully instructed in monitoring this technique and are personally present whenever it is used. See OMS Guidelines at 17-20. Indeed, although physician assistants can be present when other enhanced techniques are applied, "use of the waterboard requires the presence of the physician." Id. at 9n2. [my emphasis]

In other words, the interrogators were dumping water on AZ’s and KSM’s faces and repeating that treatment over and over and over.

Without any legal authorization to do so, no matter how bogus.

It’s time this torturer faced some  "poignant and convincing" consequences for his actions. 

And note, this is precisely why the torture tapes were destroyed. CIA has admitted that the guys waterboarding Abu Zubaydah broke the law. That tape was the irrefutable evidence of who did what. 

Update: Fixed my dates.

26 replies
    • klynn says:

      Thanks for that link. It will be interesting to see how all of this moves forward.

      Thanks for the post EW.

      By contrast, the Agency Interrogator … applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is “for real–and is more poignant and convincing.”)

      Makes the memos all the more clearly political/policy cover after-the-fact. I enjoyed this Scott Horton link over at LHP’s post.

  1. rkilowatt says:

    1. Is there confusion of relevant words? A psychiatrist is a Medical Doctor [M.D.] with specialty training in psychiatry. A psychologist has no medical training requirement and is rarely an M.D.

    2.Redacted “documents” are always suspect, as are the givers of such docs. For example, even a redacted name of a person has been known to cover that a doc is a forgery [the name found to be in different typeface in separately disovered, authentic copy of the “doc”.]

    3. Reference to an “expert” is silly without agreement on qualification of said “expert”. Ever notice that “experts” abound in proportion to how little is known about the field of “expertise”?
    There are not many arithmatic experts. Or walking experts. Or legibility experts. Or ditchdigging experts. Or tapemeasure experts.

    But lots of economics experts!
    [EPU’d from prior thread]

  2. scribe says:

    No wonder they trashed the video records. They would have proven the torturers interrogators had violated even the filmy rules the opinion might have been construed as allowing.

    Just like the NSA did since they got their Shiny New FISAAA last summer.

  3. radiofreewill says:

    emptywheel – you nailed it!

    The Memos were mooted by the Tapes, no matter what the Memos say.

    No wonder the *culpable* Lawyers and Torture Policy-Makers wanted the Tapes destroyed – the Memos were Pure Sophistry designed to *fool* anyone not familiar the Actual Practices that they hid.

    Imvho, anyone in Bush’s Administration who saw those Tapes had an Unambiguous and Clear Responsiblity to Report War Crimes, or Be Complicit Through an Act of Ommission.

  4. drational says:

    The Inspector General further reported that “OMS contends that the expertise of the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant.

    The prior memo’s defense of waterboarding as being safe with respect mental health based upon SERE outcomes is thus rendered moot. Either the agency lied about the technique to Yoo to produce the Bybee memo, or they collaboratively worked a solution that allowed waterboarding in principal, hoping that gruesome details would not be discovered.

    I also note that this memo mandates a physician be present for waterboarding, probably to prevent death from drowning, which would result in difficult to refute evidence of torture.

  5. scribe says:

    Interesting speculation in this post over at Kos, the gist of which is that rather than using a generic insect, the interrogators were going to use a scorpion.

    The rationale behind the post is “ordinary insects (and spiders) bite but scorpions and bees sting, and the memo says ‘place a stinging insect in the box’, not a biting insect.”

    It’s a slim reed but it makes sense and, given the relatively precise way these memos are worded, I think they would have said “biting insect” if that’s what they meant.

    Besides, if you tell the guy your’e going to put a bug in the box with him, the initial reaction of just about anyone would be to mash it. If it were a scorpion, the initial reaction would be to find something to mash it with, something being locked in a box would preclude.

    Just saying.

  6. Arbusto says:

    Why quibble over semantics, since our leader has stated foot solders (mainly CIA types & maybe Military Intel) in the war on terror, will not be prosecuted for running with the OLC (as disseminated by CIA Counsel) fig leaf. That they may have enriched the enhanced interrogation procedures so deliciously expounded upon in said memos, in their zeal to add knowledge of personnel and planning, however tenuous, in pursuit of evil doers, only makes them more patriotic in the Administration view and many on the right (and in the right of course).

    • chrisc says:

      Oh, but foot soldiers were prosecuted for torturing prisoners.
      Lynndie England (and a handful of others) was found guilty of inflicting sexual, physical and psychological abuse on Iraqi prisoners of war.

      • Arbusto says:

        Yep, in an attempt to show that individual bad actors did what they did while protecting the CIA, Contractors and the Army.

        Our current crop of Dr. Mengele wannabes are now defended and imdemnified by order of the Pres. Your tax dollars at work.

  7. bobschacht says:

    One of the next quandaries the Obama administration will face is lawsuits against the torturers who did their dastardly deeds before the justifying legal CYA’s were written. “I was just following orders” at that early date won’t have the cover provided by the legal memos. I hope the ACLU or someone else will go after those guys.

    Bob in HI

  8. BayStateLibrul says:

    David Rivkin is a complete arshole…

    He concludes that the memos are ”well written” and exonerates Bushie.
    Imagine being David Rivkin?

    The release of these memos comes at a high price. By describing in great detail the most assertive set of interrogation techniques, that the United States has ever used — having determined them after a great deal of reflection and analysis to be legal — we have rendered them essentially unusable in the future. This is precisely because these techniques were not torture, did not feature brute force and worked primarily because of their psychological dimension. Now, having been exposed, these techniques would be studied by our enemies, who will then train their operatives to withstand them.

    However, while this disclosure came at a great price, it also provides a great benefit. The memos are well-written, and feature careful and nuanced legal analysis. They weave together the facts and the law. They are grounded in real world experience, because nine out of 10 techniques, used against high-value detainees, were also used over a period of many years in SERE training courses, with thousands and thousands of American participants.

    This data is analyzed in great detail to establish that the use of these techniques does not inflict either physical or psychological damage. The conclusions the memos reach — that the specific interrogation techniques used by the C.I.A. did not constitute torture — are eminently reasonable. To any fair-minded observer, these documents definitively establish that the Bush administration did not engage in torture. They go a long way toward rebutting shrill and unfair attacks on the integrity of Bush administration officials, and, more generally, on America’s honor.

    • BayStateLibrul says:

      Thanks for that info.
      I called Leahy’s office and got a Ho-hum response (waiting for
      Republican support?) Investigate now… with or without support…

  9. bmaz says:

    And note, this is precisely why the torture tapes were destroyed. CIA has admitted that the guys waterboarding Abu Zubaydah broke the law. That tape was the irrefutable evidence of who did what.

    Correct. And, as I always do when this subject comes up, I will bet dollars to donuts that the tapes also establish that the only information thusly gained was either fabricated or useless. Of no value whatsoever.

  10. Hmmm says:

    Not to get all hopeful and stuff, but WHEREAS Obama has only said that those CIA interro-torturers who relied on the OLC memos in good faith will get a pass; and WHEREAS as per this post we know that lots of the interro-torturers went way beyond the memos’ already grossly distended permission envelope; NOW THEREFORE aren’t the second, probably rather large, group of said interro-torturers currently just plain bare-assed vulnerable to prosecution? Making this yet another “make me do it” moment?

    (Restating the Probably Painfully Obvious Since Forever, — Hmmm.)

    • billindc says:

      Hmmmm…I think your point is well taken. A lawyer I know in town says that while the words of Obama’s statement suggest a blanket pass, actually there are civil and criminal avenues left open to drive a truck through. One example noted above is that Obama specifically noted that those who “in good faith” followed the OLC memo recommendation would not be prosecuted. I think it defies belief to think that he didn’t know that the memos themselves clearly show that that didn’t happen.

      As I’ve been saying elsewhere, I think this release and statement were created over the objections of the CIA in order to create political space to investigate and prosecute. Look at the immediate results? Instead of putting it to rest the White House has re-energized calls for Congressional hearings and provided a whole raft of thus far unknown and horrific detail. Remember that the end result of this investigation is very likely to end up at the doorstep of the guys who were VP and President just a couple of months ago. Obama is cautious, canny and calculating (Spiro is rolling in his grave). If it’s going to go there you can bet he wants the public entirely behind it.

  11. tjbs says:

    Thank you for dealing with this sickening mess.
    I believe they used a hose from a faucet thereby giving the torture traitor the ability to cause instant death by how much he opened the faucet.
    The torture tapes, like any good porn tapes, have been copied and somewhere someone has a copy of them.

  12. perris says:

    jim white points out, this is drowing;

    This is full evidence that the CIA medical staff knew that waterboarding is actually drowning, not simulated drowning: “With the waterboard, the interrogators use potable saline rather than plain water so that detainees will not suffer from hyponatremia and to minimize the risk of pneumonia.” Pneumonia is only a risk if the water is getting into the lungs. This is an admission that water is getting into the lungs. That is drowning.

    have a read, an excellant diary

  13. lokywoky says:

    I still think the best possible solution is an independent prosecutor. Outside the justice department. Outside our rabidly partisan Congress. Someone who is strong enough to go after everything (like Ken Starr *gag*) and someone of impeccable integrity who can resist the slings and arrows from both parties when the going gets tough.

  14. thatguy1967 says:

    So let me get this straight. All of you are outraged by the United States government use of interrogation methods? I suppose holding someone under water or putting them in a box with an insect could be considered as brutal as cutting someone’s head off while they are still alive, flying a fully loaded jet full of innocent people into a high rise building (also full of people), driving a car packed with explosives into a tourist hotel…etc etc.

    I only wish you all had as much compassion for human life when it comes to aborting babies as you do for an international terrorist.


  15. Newsguy says:

    The torture policy was an admission by the Bush administration that they believed our American ideals and standards of civilized conduct would not work. In other words, Bush and company didn’t truly believe in the American ideals established by George Washington when he ordered his troops not to torture captured British soldiers. The world took note and admired us for it.

    People who support torture do not really understand our Constitution and how this country is supposed to work. Yes, we are outraged. And comparisons with terrorists is not valid. It simply suggests that we should allow terrorists to set the agenda, that whatever they do, we can do better. Nonsense. And it IS ignorant to suggest that this should be the case.

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