The SASC Smoking Gun on Waterboarding

The SASC Report on Torture strongly suggests that CIA was following one set of guidelines on waterboarding, but had gotten approval from DOJ for another set of guidelines. 

The SASC reveals that on July 26, 2002, JPRA sent a report on SERE techniques. That report is almost certainly one of the resources Jay Bybee consulted when writing his memo, which was published on August 1, 2002. The SASC report says,

[DOD General Counsel] Haynes also recalled that he may have been "asked that information be given to the Justice Department for something they were working on," which he said related to a program he was not free to discuss with the Committee, even in a classified setting

See Valtin’s story showing that the data came from the same place.

Now, as SASC describes it, the JPRA document didn’t describe waterboarding as it used to be done in Navy training. 

JPRA’s description of the waterboarding technique provided in that first attachment was inconsistent in key respects from the U.S. Navy SERE school’s description of waterboarding. According to the Navy SERE school’s operating instructions, for example, while administering the technique, the Navy limited the amount of water poured on a student’s face to two pints. However, the JPRA attachment said that "up to 1.5 gallons of water" may be poured onto a "subject’s face." While the Navy’s operating instructions dictated that "[n]o effort will be made to direct the stream of water into the student’s nostrils or mouth," the description provided by JPRA contained no such limitation for subjects ofthe technique. While the Navy limited the use ofthe cloth on a student’s face to twenty seconds, the JPRA’s description said only that the cloth should remain in place for a "short period of time." And while the Navy restricted anyone from placing pressure on the chest or stomach during the administration of this technique, JPRA’s description included no such limitation for subjects of the technique. [my emphasis]

In other words, JPRA was advising waterboarding to be used in torture to use six times the amount of water as that used in training, and JPRA eliminated the 20 second limit on waterboarding.

Now, Bybee’s memo is closer to what it appears Navy did in SERE, with limits on timing (though twice as long as SERE allowed), and description of  water being poured from a "canteen cup."

Finally, you would like to use a technique called the "waterboard" in this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers tbe mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. Tbis causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of"suffocalion and incipient panic," i.e., the perception of drowning. The individual does not breathe any water imo his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. Afler this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout.

But, as we know, that’s not how waterboarding was done in practice.

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.") [my emphasis] 

They got approval for SERE techniques. But they had already formally decided to far exceed the guidelines used in SERE. 

55 replies
  1. posaune says:

    ok, EW, getting ready to cliquez ici on Paypal.
    But first, a question.

    I have a bet with hubby that you have a “control-F” command in your head? You know, IBM genetics and all that.
    How else do you keep track of the millions of facts you remember.

    Anyway, cheers and much thanks for the outstanding thinking we get every day.

  2. behindthefall says:

    Maybe the videos of the SERE-style sessions weren’t exciting enough for their intended viewers?

  3. MadDog says:

    And they sure as hell tested it on Abu Zubaydah prior to Bybee’s August 1, 2002 OLC “go-ahead” memo:


    Published: Sunday, June 27, 2004

    An August 2002 memo by the Justice Department that concluded interrogators could use extreme techniques on detainees in the war on terror helped provide an after-the-fact legal basis for harsh procedures used by the C.I.A. on high-level leaders of Al Qaeda, according to current and former government officials.

    The legal memo was prepared after an internal debate within the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden’s top aides, after his capture in April 2002, the officials said. The memo provided a legal foundation for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, believed to be the chief architect of the attacks of Sept. 11, 2001, who was captured in early 2003…

  4. pdaly says:

    Here’s a youtube video of waterboarding (see around 2 minutes in) that more closely resembles the latter JPRA approach, including a cloth SHOVED into place over the victim’s nose and mouth and a second torturer pressing down on the victim’s abdomen. It seems to last longer than 40 seconds, although I didn’t try to time it.

    The SERE technique, by comparison, sounds like a wet T-shirt contest albeit with the use of a cute veil over the contestant’s nose and mouth.

    • earlofhuntingdon says:

      It’s rather more than that. But it is the difference between bad-ass advanced infantry or special forces training, and a real fight to the death. In this arena, the bull doesn’t get to put up a good fight and go to stud. He eats the sword and his testicles end up on the menu.

      • pdaly says:

        Yes, I should have clarified that I think both versions of waterboarding are a war crime performed on nonvolunteers.

        It is just that the first version of waterboarding as described in the torture memos comes across as almost dainty–just a few sprinkles of water over a handkerchief. No torture going on here. The Getting Waterboarded video above shows quiet the opposite picture.

        • TheraP says:

          And remember everyone, it’s not just that they did this on “non-volunteers,” these people were treated in the most degrading ways, the total environment was controlled and abusive to the extreme. It was soul murder!

        • emptywheel says:

          Agree on that point, particularly as it relates to shoving the cloth in his mouth and holding his belly.

          And it’s particularly chilling to realize those detailed instructions describe such a brutal thing.

      • pdaly says:

        True, but there is a refill pool by the side of the water man, he repeatedly refills the canteen.

        Here’s the same video Getting Waterboarded at site.
        The man in the orange jumpsuit is the reporter and former military member Kaj Larsen. The video begins with him talking to the camera before the waterboarding begins and after it ends.

        • ReverendProfessor says:

          Let not forget an important difference between SERE personnel and detainees with regard to the water board, three words;

          Training. Time. Out.

          I know, it’s hard to say when you’ve got water being poured into your face. However, a SERE trainee knows he/she is in a controlled environment and they can stop the training session. How exactly do you stop the interrogation torture session..?

  5. Jane Hamsher says:

    Okay everybody do the Karl Rove shuffel!

    (U) Then-Captain (now Rear Admiral) Jane Dalton, Legal Counsel to the Chairman of the Joint Chiefs of Staff, said that her staff discussed the military services’ concerns with the DoD General Counsel’s Office at the time and that the DoD General Counsel Jim Haynes was aware of the services’ concerns. Mr. Haynes, on the other hand, testified that he did not know that the memos from the military services existed (a statement he later qualified by stating that he was not sure he knew they existed). Eliana Davidson, the DoD Associate Deputy General Counsel for International Affairs, said that she told the General Counsel that the GTMO request needed further assessment. Mr. Haynes did not recall Ms. Davidson telling him that.

    • acquarius74 says:

      (U) Then-Captain (now Rear Admiral) Jane Dalton, Legal Counsel to the Chairman of the Joint Chiefs of Staff, said that her staff discussed the military services’ concerns with the DoD General Counsel’s Office at the time and that the DoD General Counsel Jim Haynes was aware of the services’ concerns.

      Jane, maybe it’s time to shine some light on the Joint Chiefs of Staff. The same then Capt. Jane Dalton was conducting an investigation into the ‘techniques’ and after Haynes visit Chairman of the Joint Chiefs told her DOD wanted the investigation stopped. She so testified before SenArmdSvcCom, and added that such a request to ‘cease and desist’ had never occurred before.

      Chairman of JCs 2001-2005 was Genl Richard Meyers. He gave her the order. Now, see his appearance on Charlie Rose last week Tues. 04/14/09 (before memos released). At 14:15 into the clip, about Abu Ghraib Charlie R. asks: “there’s no one – no higher level of accountability that you thought called for?” Genl Myers: “That’s my view; absolutely. No.”

      Those Joint Chiefs knew the Uniform Code of Military Justice, they knew that these ‘techniques’ were really torture under an Orwellian name; yet look what they did to Moya and Taguba for steadfastly demanding that the UCMJ be upheld and the torture stopped.

      Even now, Genl Myers is trying to claim it was all just those bad apples down at the lowest level, that Genl Sanchez had too much too do put on him, that “bad folks did bad things; poorly supervised”.

      I still have a long way to go in reading the SASR, but I’m going to be on the alert for any participation by the Joint Chiefs. I have a real thing about the top brass crucifying someone for standing up for decency and rule of law.

  6. Hmmm says:

    From huffypoo (emph. added):

    Simply deeming illegal acts to be legal does not, of course, make them legal. Rep. Jerry Nadler (D-N.Y.), in arguing for Bybee’s impeachment, says that the purpose of the memos was not to give an honest legal analysis, but to deem legal behavior that is clearly illegal in order to encourage that illegal activity. The charge, says Nadler, would be something along the lines of conspiracy to abet torture.

    House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) announced Tuesday he would hold a hearing looking into the role Bush administration lawyers played in justifying torture. Some lawyers, Conyers told the Huffington Post, were engaged in honest analysis of the law. Others, he said, were simple law breakers.

    “There are some who tried to do a get-out-of-jail-free card. Obviously, there are some that that’s all they were thinking,” said Conyers, declining to name specific names, citing his upcoming hearings.

    But he has a few in mind. “We’re coming after these guys,” he said.

  7. TheraP says:

    New York Times:

    In Adopting Harsh Tactics, No Inquiry Into Their Past Use

    In a series of high-level meetings in 2002, without a single dissent from cabinet members or lawmakers, the United States for the first time officially embraced the brutal methods of interrogation it had always condemned.

    This extraordinary consensus was possible, an examination by The New York Times shows, largely because no one involved — not the top two C.I.A. officials who were pushing the program, not the senior aides to President George W. Bush, not the leaders of the Senate and House Intelligence Committees — investigated the gruesome origins of the techniques they were approving with little debate.

    Even George J. Tenet, the C.I.A. director who insisted that the agency had thoroughly researched its proposal and pressed it on other officials, did not examine the history of the most shocking method, the near-drowning technique known as waterboarding.

    The top officials he briefed did not learn that waterboarding had been prosecuted by the United States in war-crimes trials after World War II and was a well-documented favorite of despotic governments since the Spanish Inquisition; one waterboard used under Pol Pot was even on display at the genocide museum in Cambodia.

    • Hmmm says:

      “Those who fail to learn the lessons of the past are condemned to repeat them.”

      – George Santayana

  8. Hmmm says:

    Mulling the phrase “serious physical injury, such as organ failure” — Has anyone of The Principals or the OLC crew at the time, other than Cheney himself, had a heart attack? If not, then might this language/concept have come from Cheney himself?

  9. earlofhuntingdon says:

    Among other things, the difference in waterboarding techniques illustrates two different purposes. Familiarizing personnel most likely to be at risk of capture by the enemy with what they might face once captured. And a ratcheted up, “gloves off”, full-on, high octane version designed to break, to torture captured enemy personnel.

    This was payback, authored by ruthless, ambitious, soulless bureaucrats. A few bad apples my ass.

  10. Valtin says:

    I would note that while I couldn’t know the content of the JPRA July 26 report, I broke the story of its existence and the fact it was used in the Bybee memo only last week (April 17), in an article at AlterNet: The Torture Memos Are Not Just Sick, They’re Full of Lies: A Closer Look at the Bybee Memo.

    Looking at some of the statistics quoted in the 8/02 Bybee memo, I wrote:

    The numbers aren’t an exact match — except that 4.3 percent figure — but close enough. Perhaps the original figures from his July 24 paper would fit even better, but then it’s likely OLC was playing fast and loose with the figures. They are certainly close enough to assume with strong presumption that it was Ogrisseg’s July 24 memorandum that was being quoted in this part of the memo….

    Investigators or prosecutors might want to look at Dr. Ogrisseg’s July 24 memorandum, because it appears to be prime evidence for OLC cherry-picking of results regarding the effects of the interrogation techniques in question. Yoo or Bybee or Rizzo, or all three, took the statistics that made their case, and ignored anything else.

    I also noted that Ogrisseg had been far less approving of waterboarding, and noted that in the same memo (hence the cherry-picking). I don’t know exactly (yet) what Ogrisseg wrote in his report, but I’ll be combing the SASC report to look for it. In his testimony to SASC he intimated that he said he thought it was illegal, and certainly not helpful for getting good intel.

    • emptywheel says:

      They decribe what was in it in depth, absolutely confirming what you said. Ogresseg’s memo was one of the things they sent on, along with several other docs taht seem to have been put together with Jessen and Mitchell’s guidance.

  11. TheraP says:

    Talk about dehumanizing these human persons (again from the Times, link above):

    Eventually, along with another former SERE psychologist, Bruce Jessen, Dr. Mitchell helped persuade C.I.A. officials that Qaeda members were fundamentally different from the myriad personalities the agency routinely dealt with.

    So psychologists engaged in convincing others that these people were “fundamentally different.” Inculcating something like that! Psychologists!

    I can hardly bear this.

    • pdaly says:

      Agreed. I’m still waiting for the curators of the world’s Holocaust museums to come out of hiding on this mess.
      We could use their moral authority.

      “Never again” indeed.

        • bobschacht says:

          Yes; I expect thunderclouds of cognitive dissonance with occasional lightning bolts of illumination covered quickly by darkness, followed by loud peals of thunder.

          Bob in HI

        • rxbusa says:

          Maybe he’ll use the forum to announce the appointment of a special prosecutor.

          Ever the optimist….

    • earlofhuntingdon says:

      I believe that neither Mitchell nor Jessen spoke Arabic or were versed in Middle Eastern cultures. If so, their conclusions could not be well-founded. It’s like an anthropologist well-versed in obscure tribes in South America saying the Inuit are “fundamentally different” from the civilizations they actually know about.

      It’s really an indirect way of admitting their ignorance, but wrapped in academicese, it sounds authoritative.

      Jessen and Mitchell knew their audience. They were telling an angry big city police department that had lost several officers that the bad guys they’re looking for are “fundamentally different”. In essence, it’s authorization to take no prisoners. Exact revenge. The same message was coming from Cheney all the way down. This could almost be a variation on the Stanford Experiments.

      • TheraP says:

        Which is exactly the wrong sort of message a psychologist, in particular, should ever be sending – when acting in a professional capacity.

        I simply cannot express how deeply this cuts to the core. I feel like I’ve been professionally raped. These psychologists have tortured our profession. And likely the trust of some of our patients as well.

        Well, this is not a therapy thread…

  12. Hmmm says: lead story currently “(Obama) Intel director: Bush-era interrogation helpful”. That story’s a real reach insofaras he goes on to say that on balance it hurt more than it helped. From that juxtaosition, I take it that the TradMedia spin machine’s running in high gear now. Push is coming to shove.

  13. rosalind says:

    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.”

    “poignant”. what a thoroughly fucked up choice of word.

    and wtf is a “psychologist/interrogator”? and do they fall above or below the sadist/penetrator in the 2002 torture playbook?

  14. Valtin says:

    Continuing 16 above….

    Looking closely for the first time at the report, I can see that Ogrisseg’s report was used as an attachment to the third memorandum JPRA produced for Shiffren/Haynes. The full story fills in the many gaps (though I’ll note the report still has a hell of a lot of redactions, including some crucial ones, which I’ll report on later).

    From the report:

    The third attachment to JPRA’s July 26, 2002 memo was a memo from the Chief of Psychology Services at the Air Force SERE school, Jerald Ogrisseg, on the “Psychological Effects of Resistance Training.,,207 That memorandum, which was generated in response to a specific request from the General Counsel’s office, described available evidence on the long term
    psychological effects of Air Force SERE training on US. personnel and commented from a psychological perspective on the effects of using the waterboard.

    (U) JPRA Chief of Staff Daniel Baumgartner said that when the General Counsel’s office requested a memo on the psychological effects of resistance training, he called Dr. Ogrisseg at the Department of the Air Force’s Air Education and Training Command.208 Dr. Ogrisseg said that Lt Col Baumgartner asked his opinion during the phone call about his thoughts on waterboarding the enemy.209 Dr. Ogrisseg recalled asking, “wouldn’t that be illegal?,,210 According to Dr. Ogrisseg, Lt Col Baumgartner replied that people were asking “from above” about using waterboarding in real world interrogations. 211 Dr. Ogrisseg recalled telling Lt Col Baumgartner, “aside from being illegal, it was a completely different arena that we in the Survival School didn’t know anything about.” 212

    (U) Subsequent to that call, Dr. Ogrisseg reviewed the data on the effects of Air Force SERE resistance training on students and produced his memo…. Dr. Ogrisseg said that Lt Col Baumgartner also asked him “to comment on both the physical and psychological effects of the waterboard,” which he described in his memo as an “intense physical and psychological stressor” used at the U.S. Navy SERE school. 217 Although Dr. Ogrisseg had not used the waterboard himself, he had observed its use in a visit to the Navy SERE School. He stated that, based on that visit, he did not believe that the ”water board posed a real and serious physical danger to the students” who experienced it at the SERE school, stating that the “Navy had highly qualified medical personnel immediately available to intervene, and their students had all been medically screened prior to training. Psychologically, however, the water[] board broke the students’ will to resist providing information and induced helplessness.” 218 .

    (U) Dr. Ogrisseg said that he was surprised when he found out later that Lt Col Baumgartner had forwarded his memo to the General Counsel’s office along with a list of the physical and psychological techniques used in SERE school. 219 Dr. Ogrisseg said that his analysis was produced with students in mind, not detainees. He stated that the conclusions in his memo were not applicable to the offensive use of SERE techniques against real world detainees and he would not stand by the conclusions in his memo if they were applied to the use of SERE resistance training techniques on detainees.

    • TheraP says:

      A psychologist is the linchpin of this whole business. “expert opinion” – that’s how they viewed it and treated it. This was malpractice of the worst sort!

  15. Hmmm says:

    McClatchy reporting anonymous sources say the reason for the extreme numbers of waterboarding was that Cheney and Rummy kept pushing interro-torturers to get info on an Iraq-alQ link. Since there was none, they kept coming up empty-handed. Parts of the SASC report (info from former U.S. Army psychiatrist, Maj. Charles Burney) confirm this.

    I think maybe Rummy’s toast.

    • bobschacht says:

      I think maybe Rummy’s toast.

      That would be nice, especially if he takes Dougie Feith and Paul Wolfowitz with him. Those three were big trouble right from the beginning.

      Bob in HI

  16. bobschacht says:

    Hey! the NYT is not the only major newspaper giving a shout-out to Emptywheel– Now the WaPo is getting into the act.

    Congrats, EW! More Organic Blogging, please!

    Bob in HI

    • Leen says:

      When EW(and the other big wheelers) report and investigate many are listening.

      Were there reports of waterboarding at Abu Gharib? When did Cambone go from Gitmo to Abu Gharib?

    • msmolly says:

      “First reported online by such blogs as Emptywheel, the section takes its information from a confidential report issued by the CIA’s inspector general.”

      See Teddy’s Oxdown diary about “such blogs as Emptywheel.” It is an effort to downplay and dilute EW’s stellar work, leading the reader to think that many blogs broke the story.

  17. plunger says:


    Only blackmail can give you this kind of confidence:

    Lieberman: U.S. to accept any Israeli policy decision

    The Obama Administration will put forth new peace initiatives only if Israel wants it to, said Foreign Minister Avigdor Lieberman in his first comprehensive interview on foreign policy since taking office.

    “Believe me, America accepts all our decisions,” Lieberman told the Russian daily Moskovskiy Komosolets.

    • klynn says:


      We keep calling friends to donate. This is great work!

      Valtin and pdaly, great comments and links.

      34- And spoken right after an announcement that that a critical spy case may be dropped?

      This is an interesting quote from almost a year ago:

      Dr. Jerald Ogrisseg, a former Air Force psychologist, said that the Air Force’s (Survival, Evasion, Resistance, Escape) SERE program is not intended to teach interrogation but rather to help captured Americans resist forms of interrogation used by states and parties that are not in compliance with the Geneva Convention. Retired Air Force Lt. Col. Daniel Baumgartner Jr. said a memo outlining physical pressures put on American prisoners-of-war sent to him by Ogrisseg was requested by the office of the Secretary of Defense. Both Baumgartner and Ogrisseg said they were under the impression that the Department of Defense wanted to determine appropriate interrogation procedures and had that they had no reason to assume the memo would be used to promote improper methods.

      Ogrisseg said Navy SEALS subjected to brief waterboarding in training repeatedly stated they would divulge information to captors if faced with the waterboard again. Navy procedures allowed for trainees to be waterboarded for no more than 20 seconds with no more than two pints of water. Baumgartner said what the committee referred to as “SERE techiniques” are used often and have worked against American troops. Sen. Susan Collins (R-Maine) stated that it would have been more logical for the Department of Defense to seek interrogation advice from the FBI instead of using a program not meant to teach interrogation. Senator Daniel Akaka (D-Hawaii) questioned the effectiveness of aggressive interrogation, pointing out the likelihood that captured terrorists have undergone training similar to that of United States Armed Forces.

  18. Aeon says:

    The New York Times saw the 27 page summary of this SASC report back in December and wrote about it here:

    Report Blames Rumsfeld for Detainee Abuses.

    A spokesman for Mr. Rumsfeld, Keith Urbahn, said a dozen earlier investigations had found no such connection [between Defense Department policies and the harsh treatment of prisoners], and he dismissed the report as “unfounded allegations against those who have served our nation.”

    “Because of irresponsible charges by a few individuals in positions of responsibility in Congress, millions of people around the world have been led to believe that the United States condones torture,” Mr. Urbahn said.


  19. Mauimom says:

    I encourage folks here to spotlight [or otherwise send] this to Rachel Maddow & Keith Olbermann.

  20. Blub says:

    Legally speaking, does it make that much of a difference what illegal technique they used to torture people and how egregious it was or whether field personnel stayed within the constraints of or exceeded the parameters given in the grossly illegal orders they were carrying out? If waterboarding, in any form, is categorically illegal, then this information might be useful in the afterlife, for the purpose of determining which circle of hell the practitioners should be consigned to, but it seems to me that in this world there should be a bright line test for torture. Either you’ve committed a war crime or you haven’t. I’m a little concerned that this type of thinking can be used to absolve Cheney, shrub and other leaders – ‘um, well, when they gave their orders, they really intended nice, gentlemenly torture, but those evil CIA frat boys twisted their orders and made it diabolical torture.’

  21. Mithras61 says:

    I think that what bothers me the most about this (aside from the moral issues, that is), is that Constitutionally speaking, the Geneva Conventions are Federal law (see Article II on treaties), they specifically list these acts as torture, and we as signatory parties are held to that regardless of the status of anyone else.

    This means that despite anything else anyone has to say (except if the SCOTUS says otherwise), these acts are torture and are Federal crimes because we signed on to those Conventions. The Geneva Conventions hold the same place in law as a legislatively enacted law. You can’t simply over-rule the Constitution or established law with a memo that says “it really isn’t all THAT illegal, and besides we aren’t going to call it ‘torture’ so it’s okay!”

    The argument that they didn’t know we had prosecuted people for these criminal acts after WWII is meaningless (I believe the “official” expression is “ignorance of the law iis no excuse”).

    I don’t believe for a moment that anyone involved with these heinouis acts simply didn’t know they were illegal or thought for a moment that they were acceptable. I was in the US Army from 1979 to 1985, and we had regular training on the Geneva Conventions. It included discussions on such topics as “what if the people we are fighting didn’t sign the conventions?” (the answer was “It doesn’t matter. We did, so we are bound by them.”). “What if I’m ordered to violate the conventions?” (how do I handle illegal orders?), and pretty much everything else that these a-holes are trying to use for cover.

    They knew it was a crime. They did it anyway. Prosecute them and send them to jail!

    • PoliticalScientist says:

      The detainees were all illegal combatants without uniforms and therefore did not fall within the standards set by the Geneva Conventions. Geneva dealt only with war started by state-actors–not by terrorist organizations. That was deliberate as it was felt that those who initiated the assassination of the Archduke Ferdinand leading to WWI should not be entitled to those protections.

      • Blub says:

        umm.. I’m wondering if this argument can work both ways. Perhaps the torturers were also illegal combatants, being non-uniformed spies and such. I wonder how that would play out – the president of the United States commanded a cadre of illegal combatants, on Federal payroll, to commit war crimes in the name of the US government?

        • PoliticalScientist says:

          The Geneva Convention specifically applies to Prisoners of War. It does not apply to combatants not under the direct control of a State. Al Qaeda is a stateless organization and therefore cannot be a party to the treaty, nor can its combatants expect the legal protections arriving therefrom. For example, we are today trying the Somali pirate. In 1803, we sent the Marines to the Shores of Tripoli to wipe them out. These were not state actors; we retained the choice of how to deal with them. The same applies here. We are a State actor; they are not.

      • Mithras61 says:

        To the best of my knowledge, the controlling convention on treatment of prisoners doesn’t discriminate between prisoners of war and prisoners of illegal combatantcy.

        Archduke Ferdinand’s assasins could have been tried in a court of law, so there was no special need to protect that “class” of prisoner from abuse.

        Furthermore, our own Federal laws and the UCMJ make it illegal to torture prisoners aside from the restrictions imposed by the Geneva Conventions.

        Additionally, the majority of the detainees were civillian non-combatants who were tortured simply because they could be (which abrogates the whole “illegal combatants” argument in its entirety). You can’t simply randomly sweep up entire households of people and torture them and claim “they were illegal combatants” to excuse their abuse, even if you have information that they were illegal combatants (most of which allegations appear to have been coerced as well).

    • rxbusa says:

      You are exactly right. They knew it and they wouldn’t have played that giant legal Twister game with Tenet, Yoo, Bybee, et al if they didn’t.

      The status of the captives, whether it “worked” or not — still a specious claim— all that is irrelevant.

  22. frankly0 says:

    I think the point Mithras61 makes is an important one.

    It’s just false to think of the decisions by individuals in the CIA to follow the legal advice of the OLC as being significantly excused because all they base their decisions on was that advice.

    There was, in fact, a long history of the CIA not being able to perform such techniques, and on the ground of their violation of the Geneva Conventions against torture. Certainly this would have been repeatedly reinforced in training. The notion that their decisions to implement this form of torture took place in some kind of vacuum, in which there was no conflicting evidence — and, in this case, of strongly conflicting evidence — is simply a concoction of torture apologists. Just about everything in their previous training would and should incline them to hold such techniques as waterboarding as torture.

    And then there is the simply inescapable evidence of their own eyes, which seems, again, to get very short shrift from torture apologists. It’s very hard not to regard torture as being at base the deliberate infliction of pain; it is that pain, and its deliberate infliction, that lies behind the moral objection to it; whether the damage done is permanent or temporary is irrelevant to that determination. And certainly that we might find a way to use psychological rubber hoses to inflict that pain doesn’t in any way imply that that pain is not very real for those made to endure it.

    And I should think that, for those who engaged in acts such as waterboarding, or for those who saw the tapes, or, indeed, for those who might simply imagine what it must have been like to extract even desperate, false confessions, the pain felt by the victim could not be more obvious.

    What I find really objectionable in much of the discussion I have seen about this is the idea that “legal guidance” might outweigh, and excuse, the immediately and even instinctively felt cruelty of the acts. Those of us who read about those acts and object to them do so because we can see, based on the descriptions themselves, their barbarous cruelty. It is because of that immediate and overwhelming reaction that we demand that the practice stop — as is, presumably, true of Obama himself. How then can “legal guidance” be used as an excuse to engage in those very practices (which is Obama’s own reasoning)? Either those acts are self-evidently cruel and immoral, as we maintain, or, if they can be excused by some legal memo, they are not. We really can’t have it both ways — which is what Obama seems to want to do.

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