Did Bybee Say No to Waterboarding on July 24, 2002?

Earlier today, I showed that Jim Haynes personally pushed the SERE people to come up with some materials on waterboarding on July 25, 2002, just one day after OLC had given CIA clearance to use some–but not all–of the techniques they had asked for. The same day Haynes got that information and forward it to OLC (or had John Rizzo do it, depending on whom you ask), OLC approved the use of waterboarding.

I wish I had read this passage from this Charlie Savage story before I wrote that post.

One thing could change that dynamic, however. The Justice Department’s Office of Professional Responsibility has been investigating the work of lawyers who signed off on the interrogation policy, and is believed to have obtained archived e-mail messages from the time when the memorandums were being drafted.

If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.

This is the second time we’ve heard about emails.



Imagine there were emails between–say, Addington–and Yoo, discussing what it would take to get Bybee to sign off on the torture memos? Imagine those emails were dated July 25, 2002, the same day that Haynes was pushing  JPRA to come up with some description of waterboarding that–since we did it to our own Navy men, could get past the bar of legality.

I want these guys to pay for their crimes. But I’d take special pleasure if they somehow didn’t manage to destroy all the emails. 

96 replies
      • WilliamOckham says:

        If the emails do them in, Cheney is gonna be pissed. He never wanted anything important committed to email.

        • emptywheel says:

          I will always remember that point in SL’s GJ interview where Fitz says, “You’re not one for email, are you?” and SL says, “oh, not in this job.”

      • scribe says:

        What I said yesterday:

        You note:

        First, the timeline makes it clear that CIA already had pitched waterboarding to OLC–the request for a description from JPRA served either to make it look like it came from reverse-engineering SERE internally (as opposed to Mitchell, working off a purported al Qaeda manual), or because they wanted to hide the description they already had of waterboarding. Jim Haynes’ personal involvement (predictably, he can’t remember any of it) also shows how central the “War Council,” including David Addington, John Rizzo, Alberto Gonzales, and John Yoo, was to this process. Rizzo had apparently already made the request for waterboarding, but he had to get Haynes involved at the last minute to somehow make waterboarding appear to be based on scientific principles and on SERE. And when JPRA didn’t give Haynes what he wanted the first time, he explained to them, face to face, precisely what he was looking for.

        This behavior is also consistent with an initial oral advise from OLC to the Addington-Rizzo-Gonzo-Yoo cabal that, no, waterboarding was too far, which advise the client cabal deemed unsatisfactory. That advise was then followed by JPRA going back and coming up with a “reverse-engineering” of SERE program(s) to support a conclusion that waterboarding would not be unsatisfactory, which pleased the client cabal no end.

        I kinda like my idea a bit better, because a “No, then yes” like I describe indicates JPRA recognized the illegality of waterboarding – a lot of precedent in US and foreign courts supporting that conclusion – and then succumbed to pressure from the politicos at the top, further enmeshing all of them in their own guilty knowledge.

        • klynn says:

          I like your idea better as well.

          Imagine, there could be email that would imply as much.

          OT sort of…

          Gosh that July 25, 2002 jumps out at me as I read this timeline…

          From Ghorbanifar timeline:

          June 27, 2002: Rumsfeld documented as having read Ledeen memo (DOD claims the memo “passed through” Rumsfeld’s office)

          July 4, 2002: Ledeen contacts Sembler about further meetings with Ghobanifar in Italy

          July 13, 2002: Wolfowitz assistant tells Rodman Tenet supported contacts; Charles Allen to coordinate

          July 15, 16, 2002: CIA cables on meeting

          July 18, 2002: Sembler alerts Marc Grossman that Ledeen contacted him on July 4 regarding further meetings in Rome in August

          July 19, 2002: Rodman action memo (citing multi-million dollar business deals) in response to Ledeen memo recommends ongoing contact with CIA coordination

          July 25, 2002: Feith reviews Rodman action memo

          July 25, 2002: CIA cable reflecting Powell’s lack of approval for contacts

  1. pdaly says:

    emails obtained from what safe harbor archive?! Oh, wait. Don’t answer that. Cheney could be reading this blog.

    Savage’s paragraph about Yoo’s state of mind is infuriating if this is a valid legal argument for the [some day] Defendant:

    But there is little precedent for prosecuting government lawyers who provided arguably bad legal opinions. Moreover, Mr. Yoo, the memorandums’ principal author, had espoused idiosyncratic views about presidential power before joining the Justice Department, so it would be difficult to prove that he did not believe what he was writing.

    I’d counter that we are not thought police. We only prosecute the crime, after the criminal acts on his impulses.

    • emptywheel says:

      Yoo, teaching students, first text in presidential powers class? Youngstown.

      Guess what text is missing from his memos?

      He can’t claim ignorance on that point.

      • pdaly says:

        Ohh, good point. Maybe we ought to contact his former Con Law students and ask them to retain all class notes.

        • pdaly says:

          although I expect he’d try a Libby: claim he learned of it [Youngstown] again, as if for the first time, once he left the OLC.

          • bobschacht says:

            Gad. Which is worse, that he knew about it but didn’t mention it, or that in a position as important as his, he didn’t know about it, and no one thought to mention it to him? I’d hate to have to defend either alternative in court.

            Bob in HI

        • MrWhy says:

          Maybe we ought to contact his former Con Law students and ask them to retaindestroy all class notes.

          Fixed it for you.

  2. JimWhite says:

    What a piece of work these guys are. All in one week:

    But the intelligence and facts were being fixed around the policy.

    July 23, 2002


    If it turned out that the lawyers initially concluded that aspects of the proposed program would be illegal, then reversed that conclusion at the request of policy makers, then prosecutors could make a case that the officials knowingly broke the law.

    July 24-25, 2002

    And, of course, we now know that the reason for that torture policy was to get a false link between Saddam and 9/11.

    This is all part of a single plan, put together in one big move. “The policy”, as referenced in the Downing Street Memo and the quote from Savage’s article, clearly was to invade Iraq, no matter what.

  3. alabama says:

    I hope I’m on target. My thoughts are these.

    The torture tapes were the crown jewels of The Bush White House, and everyone knew it. On the basis of one question–did you ever watch those tapes?–the measure could be taken of anyone’s White House standing. Any number of scrambling junior bureaucrats would burst into tears of joy at the prospect of watching them–less for what they contain than for what the invitation tells them about their standing.

    Setting aside those with the need to seem them–lawyers and CIA folks–the chosen ones would have to be very few, and at least be able to watch without going berserk.

    They would attend a different kind of viewing from the “official ones” (so as not to be seen, as it were, in public). No, they would attend private viewings at the invitation of Bush, perhaps at Camp David, when Laura was off the premises. There would be a few such folks–for reasons of secrecy, and because the whole point of these viewings was “rest and restoration,” calling on a small group of old and trusted fraternity brothers who clearly adored the President, and would laugh and cheer on cue at the tortures as viewed.

    This inner circle would, as I’ve said, have to be very small. No women, which rules out Condi Rice. No mechanical operators, ruling out Rove. And no one who might, for reasons of cultural background, feel ill at ease in this circle of Texans–ruling out Card, perhaps.

    But two people fit the description to a T: they are Dan Bartlett and Daniel Evans. We should think about these guys. Watch the role they played in Bush’s serial killing of inmates on death row at Texas. Were they totally on his side, all of the time? Did they urge him on? Did they give him the green light, and laugh when he laughed at the killing of Carla Faye Thomas? Did they get bored after a while–making excuses to miss the party? If so, who might have replaced them?

    Of course they did this. These villains smile, and stay out of trouble by running boy scout organizations. It would be fun to hear their side of their argument: no doubt they would say something like “Our President needs all the help he can get in these trying circumstances”.

    But it’s not their testimony that matters; it’s the testimony of those who witnessed their fun in the film-room.

  4. bmaz says:

    And remember, Addington screwed up and made himself a de facto custodian of records on OVP emails.

    Somebody, anybody, put that chump in the witness chair and cross the bejeebies out of him. CREW and NSA couldn’t quite get er done; maybe somebody can now??

    • MrWhy says:

      I thought Charlie Savage was a competent journalist, but this article is pretty weak. He uses political words like “unlikely heads will roll”, and “efforts to prosecute would be extremely difficult”. A “partisan firestorm” has nothing to do with the merits of prosecution.

      • bmaz says:

        You know, I am not sure prosecution is all that difficult in the least, and it is getting easier by the hour. That is not to say that a conviction is guaranteed (it never is though, especially with the wildcard of a jury); mostly, however, it is only difficult because it ruffles political feathers. Funny thing though, that is not a valid consideration in the eyes of Lady Justice.

        • Hmmm says:

          Had a wild thought the other day. There’s a lot of resistance to a Congressional inquiry, a special commission, a Truth commission, a DoJ investigation & prosecution. (Personally I greatly prefer that last, and fervently hope that’s what we’ll get.) But mainly, if all else should fail: What about a good old-fashioned impeachment? I mean not just Bybee, but everyone up to W and Dick. Condi and Rummy and all the officers. Sure they’re out of office now, and stripping the retirement benefits won’t hurt these oligarchs much… but if I understand correctly it’s still an available remedy, and it really would mean a total repudiation by the US of what they did, and really would serve as an example to future Prez’s and VP’s. Might even help put the ghost of Watergate to rest.

          Anyway, just a thought.

          • bmaz says:

            I have often thought about that. Don’t think you could do it on a mass scale, too many individual cases would be too time consuming. I think if it were to be done, you would pick one and use them as an example for the whole and use the process to expose a wide variety of the bad acts. Cheney would be the perfect choice. I always thought Gonzo would be the easiest and most interconnected target. To be honest, there is about zero chance of this; maybe less than the other modalities of accountability.

            • Hmmm says:

              Ah, so I am not wholly crazy about that; good. I agree it seems like a remote option, but hey, one more arrow in the quiver.

  5. MadDog says:

    EW, something to correlate with your Torture Timeline Excerpt and the related posts:

    From Yoo’s written submission to the HJC:

    …The legal issues that concern the Subcommittee today – involving the interogation of alien enemy combatants – first arose about six months after the 9/11 attacks

    …In facing these questions in 2002 and 2003, we gave our best effort under the pressures of time and circumstances…

    (My Bold)

    To hear Yoo say it, he, and the OLC evidently, were not involved in concocting OLC Torture opinions before March/April 2002.

    And yet, based on your Torture Timeline excerpt, the tortue discussions were well underway in late 2001 at the WH, CIA and DoD.

    If, and I repeat if, Yoo is telling the truth (big if!), then his statement pounds another nail in the coffin of how this was a top-down, high-level driven process by folks at the WH, the DoD and the CIA.

    Or to paraphrase the Bush/Cheney modus operandi, the facts were fixed around the policy!

    • readerOfTeaLeaves says:

      Fits like a glove with JimWhite’s hypothesis @5, which makes a spooky amount of sense.

      • MadDog says:

        Yeah, I find it incredible that anyone but The Villagers can buy into a “good faith” spin.

        Anyone with common sense can clearly see that the Torture policy was decided first and then they went to the OLC for a “Get Out of Jail Free!” opinion.

    • MadDog says:

      Yoo’s description of his timeline here differs it appears from what he wrote in my previous comment:

      …we received the first request a few months after the September 11, 2001 terrorist attacks…

      (My Bold)

      So which is it Yoo?

      …about six months after the 9/11 attacks…


      …a few months after the September 11, 2001 terrorist attacks…

      “About 6 months” does not seem to comport with “a few months” in my lexicon.

  6. nextstopchicago says:

    From the NY Times piece on the ABC interview, Kiriakou now works for the Senate Committee on Foreign Relations. Maybe I’m slow to realize this. But god that bugs the crap out of me.

    • SparklestheIguana says:

      That’s annoying. So is this:

      Mr. Ross, who received a George Polk Award for a series on interrogation, expressed no regret about the Kiriakou interview and praised him for speaking publicly. He said ABC was preparing a story that would address the previous reporting.

      “Kiriakou stepped up and helped shine some light on what has happening,” Mr. Ross said. “It wasn’t the huge spotlight that was needed, but it was some light.”

      The guy says something completely false and misleading, causing many months of false and misleading repetitions in the press, but Brian Ross doesn’t regret it?

  7. Stephen says:

    Is there a statue of limitations on the illegal war, torture, wiretapping, perjury, and conspiracy? Or will the issue of murder keep things alive for all time until a prosecution?

    • bmaz says:

      Wiretapping, perjury and conspiracy are all covered by the general statute of limitation of five years (there are a number of considerations in calculating the statute for conspiracy; that is not an easy answer without a lot of specific facts). War crimes involving death have no statute of limitation in any jurisdiction as far as I am aware. Under the War Crimes of 1996 Act, US war crime charges for engaging in murder, torture, or inhuman treatment have no stated limitation.

      • pdaly says:

        Nice. But a major oversight on Addington’s part if that law has not been tampered with since 1996.
        Has anyone checked the bookshelf recently?

        • bmaz says:

          Well, don’t forget that via provisions in the Military Commissions Act (MCA) and and the Detainee Treatment Act (DTA), they have given themselves purported immunity from a range of offenses and affirmative defenses to most all offenses. This is why the issue of good faith is so critical; if there is bad faith, the affirmative defense melts away.

          • readerOfTeaLeaves says:

            Pffftttt… they didn’t tell their counterterrorism person, Francis Townsend, about the program whose code name Comey knew — but she didn’t?!

            How is not allowing your ‘counterterrorism’ chief to be ignorant of a key surveillance program showing an iota of ‘good faith’ [unless, like Jane Harman, you question her true sympathies – in which case, why would s/he be your counterterrorism guru…??

          • pdaly says:

            Thanks. Then if there is ‘bad faith’ who has standing to call them on it? Just the detainees? Fellow coworkers? Us?

      • Fenestrate says:

        Torture has an SoL of 8 years unless death results, in which case there is no limitation.

        If you want I can find the code section and link it.

  8. readerOfTeaLeaves says:

    Anyone who’s a doc, or lives with a physician, please confirm what I’m seeing on a KO segment here: http://www.msnbc.msn.com/id/30…..6#30442976

    At 00:47 into this segment, KO quotes a memo written by Yoo regarding the (soaked) cloth placed over the prisoner’s mouth… 00:50 ‘this causes an increase in carbon dioxide level in teh individual’s blood…’ [and] induces a “perception of suffocation and incipient panic…”

    1:07 (the individual) ‘does not breath any water into his lungs’…

    Here’s the deal: John Yoo is a fool, and it does not seem possible that he checked with a physician.

    Here’s one link from a google for ‘carbon dioxide’ + ‘death’.
    When someone passes away, it’s my understanding that the CO2 levels in the blood rise; this changes the acid levels in the blood, and therefore in the body’s cells. We can tolerate only a fairly narrow range of acid/base (measured as pH) in our blood and in our cells.

    Too much acid = toxicitiy. Which leads to death.
    Ditto too much base.

    Now, it would not have been difficult for John Yoo to inquire about specific pH ranges for blood. And if he’d spoken to a hospice nurse, he’d have learned that you don’t want CO2 levels to rise in blood — you just don’t.

    It leads to panic, because the brain lacks enough oxygen to think clearly.
    And obviously a panicked person isn’t likely to tell the most accurate, coherent tale you’ve ever heard… (but I digress).

    I am just kind of sitting here gaping at the computer screen.
    As near as I can fathom, Yoo rationalized:
    (1) they may inhale water, but not too much — no long term harm.
    (2) the larnyx may spasm… (thus, presumably, the requirement to have a doc stand by to cut a trach if needed).

    However… to be quite frank here on a weekday evening, the process of death as it’s been related to me, and as I understand it, is precipitated by the buildup of CO2. When you are caring for someone in extremis, one of the things you’re keeping an eye on is CO2.

    Again, to be blunt — and I await the correction from physicians who may stop by, but as explained to me — the body’s organs require a lot of oxygen and nutrients. Therefore, it’s my understanding that oxygen deprivation may be short-term, but they were repeating this over, and over, and over. As I understand the cell biology, it seems to me that this would first impact the organs (which explains the brain’s reaction, as it’s the organ that just loves to feast on glucose and oxygen is kind of the catalyst that burns up the glucose in a catalytic process). So presumably, that kind of repeated increase in CO2 blood levels would increase the liklihood of damage that would probably show up first in the organs (I’m thinking brain, then heart, then liver but again I’m not certain that I have the sequence correct).

    In pediatric care, kids are sometimes given ‘an ET finger’; this is a device that lights up bright red if the child’s blood oxygen levels drop too low. That alerts staff, and one of the things they’re watching for is buildup of CO2, which in a very small body (30lbs or 40lbs, can happen fast — which is why it’s so damn scary when your kids get sick).

    Sorry to ramble… and again, I await confirmation or correction on details.

    However, it’s confusing that Yoo didn’t check with a physician about the specific parameters (or ranges) of acceptable CO2 buildup — both for one specific session, as well as cumulative (which would be a separate, but related concern). Because it’s hard to grasp how a physician could ’sign off’ on buildup of CO2 levels, particularly if these were ’spiking’ over days, weeks, months, because of repeated sessions.

    Then, Yoo seems to rationalize his ‘work’ by claiming that since no water entered the lungs that it’s okay to go through this process. He does not appear to grasp the significance of the CO2 buildup — not over one event, and certainly not over time.

    This is not to be ’soft on terrorism’ or any such thing.
    What is needed is information.
    CO2 buildups cause light-headedness, and panic; panicked people are not reliable.
    If over time the CO2 buildups were to cause damage to vital organs, then essentially you’d be destroying the source that you require for good information; in other words, unbelievably self-defeating from a biological, metabolic perspective.

    That KO segment is focused on the statements made in the Yoo memos.
    They are so damning as to be almost baffling.
    If someone asked you to sign off on a procedure, wouldn’t you at least pick up a phone and get some information about acceptable ranges of CO2?!
    This almost doesn’t make sense… it’s just kind of baffling.

    • readerOfTeaLeaves says:

      CO2 as a life-threatening hazard if allowed to build up in blood beyond certain parameters.

      Again, and apologies for rambling, but the key issue is not whether the person has a cloth over their mouth; it’s the CO2 buildup in the blood; the constant risk of altering pH (or putting it in a range at which it can’t easily recover), which damages the cell.

      Maybe I’m thinking down too deep within the cells, but damn…
      From a biochemical perspective given what I know the cloth-over-the-face is the least of it. What you really want to know is the blood pH levels, and how that affects cell recovery, acidity in the cells (which affect metabolic function).

      John Yoo and the rest of those fools in D.C. watch too much “24″.
      Maybe attorneys at DoJ should be required to walk through a blood lab and Walter Reed for a quick overview of basics?

      This really is incredible.
      Did Yoo believe that because he had a law degree, he didn’t have to trouble himself to find out about the significance of what ‘rising CO2 levels’ means?!

      Someone please tell me that a Berkeley law prof has enough sense to at least pick up a phone and try and u-n-d-e-r-s-t-a-n-d the basic biology of whatever he’s being asked to make a legal judgment about…

      Does this mean that Bybee was equally careless?!

      This is crazymaking.

      If there was a ‘doctor’ present, then given my experiences having to keep an eye on pH levels (mostly related to water quality, which in turn affects living cells), I just find it mind-boggling that the physicians didn’t call a stop to all this simply on the basis of the CO2 buildups.

      I hope that I’m missing something, because if I’m not…
      Paging FrankProbst…

      • behindthefall says:

        CO2 buildup may be the link between the outside manipulation and the body’s crashing, but filling the airways with water was anticipated, judging by a phrase that crossed these threads yesterday or so: “excessive water in the airways” that was to be undone with a “subxyphoid thrust”.

        Your concern about the cumulative effect of repeated sessions of this torture certainly seems right. How is anyone to know whether all the water has been cleared from the bronchial tree after a session? 10% blockage here, another 10% blockage: pretty soon you’re talking about slow drowning. I have always maintained — in the absence of any experience other than minor mishaps swimming underwater — that the much-sought-after panic this technique induces occurs because the body is smart enough to know that it really _is_ at risk of dying. I am not slightly interested in finding out whether plastic wrap placed over the nose and mouth for 40 seconds would bring about the same agitation as water poured on fabric — presumably both would have the same effect on CO2 levels — but I would guess that the water technique would be far more effective: water in the airways will do that. My sense is that they were _looking for_ water in the sinuses, which the reasonable body will interpret as a prelude to water in the airways and which might very well induce panic, and the whole lowered-head positioning makes it sound as though water-in-sinuses was a goal, not just a side effect. However, they were kidding themselves if they thought that this is a readily controlled experimental arrangement, and as they later (some doc that went by here recently) had a physician qualified to do a tracheotomy standing by, they must have found out just how hard it was to control.

        If Yoo or anyone else had really wanted to find out whether repeated, cumulative incidents of airway blockage by liquid would damage a person, particularly a person’s mental functioning, there are pulmonary medicine departments across the country. But they are staffed by ethical people, and ethical people would not have condoned the first whiff of this procedure. They couldn’t ask the right people, because the right people would only have provided the wrong answer (and then probably have rung the alarm).

      • cinnamonape says:

        I would at least think that Yoo would have known about UC Berkeley (he was still an employee despite being on leave at another “institution”) and Federal regulations (which are quite stringent when using Prisoners as “experimental subjects”) .



        A lot of paperwork even to get authorization to undertake non-harmful activities. I’m sure none of this went through those hoops.

        • readerOfTeaLeaves says:

          Oh, I am familiar with some of those regs.
          It does make all this the more dumbfounding, doesn’t it?

    • cinnamonape says:

      Buildup of toxic levels of CO2 in the bloodstream…It’s technically called hypercapnia. Some of the panic responses, muscle twitching, gasping efforts to breath (forcibly inhibited), vomiting, and unconsciousness match the symptoms.

      BTW Do people realize that John Yoo’s parents are psychologists? Wonder what they think about all this?

      • readerOfTeaLeaves says:

        Thanks, cinnamonape, and also behindthefall @51.

        I realized that a shorter way to phrase my pondering would be something along the lines of:
        Okay, Mr. Yoo, you think it’s okay to scare this person by making him suppose that he is drowning, and since he doesn’t drown you think it is ‘acceptable’. But meanwhile, did it occur to you that his blood is headed toward the pH end of the scale that you would call ‘vinegar’?

        Seems incredibly self-defeating.

      • cinnamonape says:

        Oh and one more thing. Recovery from hypercapnia usually requires application of Oxygen. Yet I haven’t heard about any such application of this recommended method. No remarks about an oxygen mask after water boarding.

    • pdaly says:

      I haven’t watched the KO video, but “respiratory drive” is increased in most people as the carbon dioxide level increases in the blood stream. If you hold your breath, then after 30 seconds you can achieve the same sensation of wanting to exhale (getting rid of carbon dioxide is the body’s way of removing acid build up in the blood stream) and catch another breath of oxygen. If a wet cloth and water (and screaming interrogators) are preventing you from doing so, however, I can only imagine the panic of suffocation it must elicit.

      The body has very little oxygen stores, so you need to be constantly breathing to maintain oxygen levels in the blood stream.
      However, the body does have very good carbon dioxide buffering systems, so you can build up fairly high carbon dioxide levels in the blood stream before you will see a change (drop) in the pH.
      I think it takes on average 60 seconds of not breathing to see a drop in pH of arterial blood. Maybe 40 seconds is possible, if you rinse and repeat many times, to see such a change in the pH.

      The “ET” finger you mention is a pulse oximeter–a red light placed on a finger (or toe or earlobe) used to calculate oxygen percentage (not carbon dioxide) in the blood. This oxygen saturation reading can be falsely high in someone who smokes– carbon monoxide inhaled from smoking looks like ‘oxygen’ from the oximeter’s perspective.

      A normal oxygen saturation hovers around 97-100% when breathing room air. When the oxygen saturation drops below 88%, then the brain function begins to deteriorate. Confusion sets it. It is reversible if oxygen levels return to normal. It is permanent if the “desaturation” is prolonged (minutes) or recurrent.

      To measure “carbon dioxide” levels in the blood stream accurately (are they even measuring carbon dioxide?) , you would need to jab a needle into an artery (not into a vein). Arterial punctures are more painful than the routine blood tests which are performed by sticking a needle in a vein, because arteries, unlike veins, are covered in nerve fibers. Arterial punctures also require more prolonged application of pressure to the site after the puncture to stop the bleeding, because the blood is coursing through at a higher pressure than in veins.

      I said above that carbon dioxide increases respiratory drive in most people. There are some notable exceptions.
      People with emphysema may have abnormally elevated carbon dioxide levels in their blood stream at baseline, so their brain sends a signal to breath when oxygen levels drop too low.
      If you waterboard such a person and then try to resuscitate him with high flow oxygen, his respirations may slow down or stop before enough of the excess build up of carbon dioxide is breathed out. These people can easily have a respiratory arrest and need to be intubated.

      Another thing to note: a potential cause of decreased respiratory drive is … sleep deprivation.

      • bobschacht says:

        I know we’re in late night, and few folks are around, but one more thing, as Rachel says: I’ve spent a bunch of time in hospitals for various heart-related situations. I have worn the pulse oximeter more times than I can count. And on one occasion, I experienced oxygen deprivation sufficient to induce near panic: It was an attempt to restore normal sinus rhythm in my heart, and the method they tried was to actually stop my heart for a few seconds, in the hope that when they re-started it, it would start in normal sinus rhythm. I can tell you, in those few seconds when my heart was not beating, and my blood not being oxygenated, I reflexively tried to inhale more and breathe more– which doesn’t do any good if your blood isn’t circulating. That is a feeling I definitely did not like at all. Panic was close at hand. And that was in a friendly environment.

        This is serious business.

        Bob in HI

        • pdaly says:

          I know we’re in late night, and few folks are around, but one more thing

          lol. I’m still awake. That ‘decaf’ I had this afternoon I am now realizing was regular coffee.

          Is this Rachel Maddow you are quoting? My first thought when I read this was her mixologist youtube may have gotten the better of her. Not casting any aspersions on Maddow, but your description of “Rachel’s” experience sounds like an episode of atrial fibrillation–an irregular heart beat which has many different causes, including alcohol intoxication. For that reason, atrial fibrillation is sometimes referred to as “holiday heart.” A thyroid condition can cause it, as can a heart condition.

          But the sense of rising panic from the lack of circulation and increase in carbon dioxide levels is real, ‘even in a friendly environment’ as she says.

          I should clarify my comment above: For most healthy people it is the rising carbon dioxide level that prods us to breathe, not the dropping oxygen levels. The exceptions are the CO2 retainers (some people with emphysema or sleep apnea) or sleep deprived people.

      • JTMinIA says:

        Here’s some irony.

        It’s been known for a while that periodic bouts of hypercapnia can cause a long-term reduction in respiratory function. In other words, there are long-term, negative consequences to being waterboarded repeatedly (but these don’t equal organ failure, so quit your whining).

        That’s not the irony. The irony is that the most-widely cited paper demonstrating the long-term effects of hypercapnia is by Bach and Mitchell. (It’s in the Journal of Applied Physiology, 1998, Vol. 84.) Not, it’s not *that* Mitchell, but I still found it amusing.

        • readerOfTeaLeaves says:

          It’s been known for a while that periodic bouts of hypercapnia can cause a long-term reduction in respiratory function. In other words, there are long-term, negative consequences to being waterboarded repeatedly (but these don’t equal organ failure, so quit your whining).

          Whoa… 8-0

          I’m generally talking with people down inside the level of the cell; the damage to an organism can take awhile to become evident; it shows up first in the cell(s), and their ability to regenerate.

          But so much easier for Yoo not to think about multiple, repeated effects.
          Per Rayne, what’s interesting is to see that Yoo didn’t show much curiosity in thinking these things through — if he were a corporate attorney being charged with defending or pursuing a case, you’d like to think that he’d leave no stone uncovered in terms of the key ‘keywords’ or ‘topics’ in his case.

          But there he is, writing about CO2, yet he shows zero curiosity about the implications — he scopes it so small that he gets the answer he wants. He sure wouldn’t cut it as a researcher, if I’m reading his opinions correctly (!). He doesn’t show any sense of trying to understand what he’s talking about. That happens, but you wouldn’t expect it at ‘the top levels of government,’ and I’ve lost respect for Berkeley’s School of Law. Mamma mia….

          • TheraP says:

            Also @ 82:

            I think that’s part of the “compartmentalization” here!

            Compartmentalize the depts, the different actors.

            Compartmentalize the “moments” and the “techniques” used.

            Never put the whole darn process together as “one entity”.

            Rinse and repeat.

          • JTMinIA says:

            The exact locus of the damage due to repeated bouts of hypercapnia are not known. Nor is it clear that it’s the excess CO2, in particular, or the drop in pH that is caused by excess CO2. The best current guess is that the damage is in the pons (i.e., the subcortical controller of things like breathing) as opposed to the intercostals (i.e., the muscles between the ribs) or the diaphram.

            If you’re really interested in this, then the best place to look is in the literature on sleep apnea. Ceasing the breath in your sleep is akin to a mild form of repeated waterboarding (which is why, Your Honor, the latter can’t be seen as torture).

            • readerOfTeaLeaves says:

              My brain just had a modest fireworks display… Oh.My.Goodness.

              Think about it: the pons is right there nestled up with the medulla and the reticular formation weaves through it IIRC. And right by the cerebellum (that most mysterious of organs…).

              So let me offer hunches:
              pons/cerebellum: sense of time will be distorted, or rhythms will probably be disrupted.
              pons/medulla: basic body functions inhibited, repeatedly IF the brain has to — as pdaly points out — desperately gasp for oxygen.

              So on the level of ‘what you see with your two eyes’ in a room, or on a teevee screen showing ‘24′, or on a video, is just a person gasping and maybe moaning (I’ll stop there, thanks all the same).

              But if you looked at the longer term, systemic impacts — and in fact, apnea research is now beginning to document:
              – damage to the brain system over time (subtle, but cumulative)
              – damage to the heart in particular, as it is required to pump that much-needed oxygen around the body and it doesn’t like being jerked around to gasp for oxygen every few minutes (as in sleep apnea).

              If a committee were convened to investigate this mess, they would be wise to contact someone doing research into sleep apnea. Weirdly, I happened into a fairly casual conversation on the topic of sleep apnea just last month, and found the implications really fascinating.

              Shorter: if you have a subject and you need info, and you repeatedly cut off oxygen supply, the longer term, more subtle impacts are not likely to show up right there in the room (unless, of course, we’re talking about drowning).

              It’s the metabolic level, the repeated disruptions and arrhythmias, that seem to suggest the longer term damage would not show up right away, but would be delayed. And my sense is that it would probably be cumulative, although that’s not actually my field so I’m not kind of authority on that aspect.

              But the pons and cerebellum… not something any of us need to have messed with — but more significantly for the topic of ‘torture’ is that you’d want the subject in good health and alert if you wanted information…. wouldn’t you…?

              Which puts this more into the category of ‘retribution’ than ‘information recovery’, if looked at through that lens.

              Your comment absolutely stunned me, as have several here.
              Hope pdaly can make it back to summarize!

          • cinnamonape says:

            My suspicion is that he DELIBERATELY ignored aspects of legal exploration that he suspected would monkey-wrench the conclusions he sought. Once you get assurances from SERE that the methods don’t produce long-term physical effects (and ignore the differences in methods, subjects it is applied to, and the fact that the tortures are going to be used in tandem or simultaneously) that’s enough. Furthermore, you ignore cases that simply might counter your positions (Jonestown). Yoo always seems to take the false trail…that would allow him to arrive at the desired, but erroneous, outcome.

            Of course, that’s legal malfeasance.

            • readerOfTeaLeaves says:

              Yeah, or as I would phrase it: “Yoo took his eye off the goddamn ball.” Or he was watching the wrong damn ball.

              Suppose that you were absolutely clear that your objective was to get the best possible information so that the long term strategic military (and social and political) objectives could be accomplished.

              IF that were the case, then you’d want to ask questions about both long AND short term consequences of what Rummy, Cheney, and Bush were pounding their fists on the table to demand of you. (Oh, and Libby, and Addington, and Cambone, and…)

              So basically, IF you had your eye on the ball — IF the ball that you were focused on and not getting distracted was: “How do we elicit the best possible information?!” THEN you would have to do more homework than it appears that Yoo did.

              And you would have discovered that what might seem expedient in the heat of the panicked moment might, in fact, end up damaging your long term strategic objectives.

              I really, really dislike these people.
              I hope to heaven that I never, ever even have to pass by them in an airport or sit near them in a theatre.

  9. Jeff Kaye says:

    I don’t know that anyone has noted this, from the July 25, 2002 memo from Baumgartner, JPRA Chief of Staff, to Secretary of Defense General Counsel, describing the various attachments to his memo. The attachment below is supposed to be SECRET NOFORN (bold emphasis added):

    Attachment 4: Exploitation – Threats and Pressures. The goal of this lesson plan is to focus on a peacetime governmental detainer’s most likely exploitation goals and the historically effective tools used to achieve them. Reversing this, an exploiter/interrogator has a plan for exploitation of enemy detainee.

    Givin’ the Man what he wants. Just sayin’… (otherwise, what we would have would be a bizarre non sequitur)

  10. pdaly says:

    Oh, lot’s of answers while I was typing. I didn’t even address the issue of water flooding the airways (see behindthe fall) despite Yoo’s reassurances to the contrary.

  11. JohnJ says:

    I don’t want to detract from the technical discussion of the effects of this treatment, but have you ever had water go up your nose while upside down in the pool.


    It washes all that nice protective mucus from the inside of your nose and sinuses leaving the inside of your head feeling raw. The effect can still be felt the next day.

    Now multiply that by 5 or 6 times a day and that would be torture by itself.

    If this helps understanding any of the measurements; a blood oximeter actually measures the color of the blood and can also be calibrated to monitor the pulse by the sensing the changing light density.

    • perris says:

      I forget where I saw it but I think on one of the clips over at c and l

      they’re finally putting this in a more realistic perspective, they person being interviewed said;

      “the reason you have the sensation of drowing is the fact that you ARE drowing”

      ianawb (I am not a waterboarder)

      when waterboarded your body will convulse in the throws of death


      because your brain thinks you’re dying

      why does your brain think your’re dying?

      becuase you are dying.

  12. perris says:

    one thing I always thought bush got right, he said he didn’t email because he didn’t want people looking at his stuff

  13. lysias says:

    Speaking of e-mail trails, I wonder who told Yoo to stay behind in his office the morning of 9/11, when the Justice Dept. building was evacuated.

    • klynn says:

      I wonder who told Yoo to stay behind in his office the morning of 9/11, when the Justice Dept. building was evacuated.

      (my emphasis)

      For lurkers and new readers here’s what EW wrote about that almost a year ago.

      Like he couldn’t issue “that” opinion from a secure location. The someone knew he would be “safe” staying behind.

  14. skdadl says:

    Haynes really did need Baumgartner (or someone from JPRA) to cover for him, yes? (I know you caught that yesterday, EW, but it leaps out more and more even for slow-pokes like me.) Poor ole Baumgartner; did he think he was just being a good soldier?

    Shiffrin puzzles me. I thought his behaviour at the SASC hearing was, um, impudent? But I recently watched “Torturing Democracy” over again, and he speaks there as one of the good guys.

  15. lysias says:

    When Hitler tried to show his associates film of the awful deaths those condemned for the plot to kill him were made to suffer (rolling around hanging from meat hooks,) they were so disgusted that they wouldn’t watch them.

  16. Rayne says:

    You’re struggling with the issue of CO2 and medical attention because sane people acting to the letter of the law would never have acted as the interrogators or psych/medical personnel assisting them did.

    As Jay Rosen is fond of pointing out, ”the base is not reality-based.”

    You are trying to look at this from the perspective of a sane human being; your frustration is borne of cognitive dissonance, trying to understand what is utter insanity.

    What was done was not a legitimate attempt to find the truth using legal means, but an illegitimate attempt to do something altogether different, from a perspective which creates its own reality from unreality.

    John Yoo did not give a rat’s ass about the CO2 levels of any detainee; he had been charged with making any legal challenges go away. Presto, a wave of the wand of unreality and the challenges are gone. And from his perspective of unreality, this wave of the wand will never yield any repercussions. As a sane person, you know this should not be the case.

  17. radiofreewill says:

    EW – I think you are right-on, again! Bybee said ‘no’ and wouldn’t it be nice if e-mails reveal the chatter between the Two Sociopaths, Addington and Yoo, trying to game Bybee – who may have been insisting on CYA in the form of Mary’s description of ‘reliance memo’ standards before he would ’sign-off’?

    It all seems part of a general pattern with Bush – the Raging Megalomaniac being chased by his Fawning, Favor-Seeking, Do Anything-Say Anything Enablers – a bunch of Lauras rushing ahead of Bush so he won’t see anything that displeases him and makes him angry.

    Bush never stopped Torturing – specifically Water-Boarding – he only moved it around through Compartmentalization to keep it Secret from Those Who Objected to it – by ‘cutting them out’ of the Need to Know about Torture.

    The job of the Addington-controlled Yoo-Bybee Team, as I see it, was to Paper-Over with Covering Legal Opinions any Objections Raised by those who knew about the President’s Torture Program.

    The actions of the OLC, imvho, seem to be all Ex-Post Facto to Bush’s expressed desires.

    Similarly, Bush never stopped Wire-tapping US without a Warrant, he only moved it around through Compartmentalization to keep it Secret from Those Who Objected to it – by ‘cutting them out’ of the Need to Know about Violating the 4th Amendment.

    Bush never stopped Politicizing Government…never stopped Deregulating Wall Street…never stopped Influencing Contracts…never stopped Manipulating the Press…

    Bush never stopped Advancing His Ideological Agenda, he only moved it around through Compartmentalization to keep it Secret from US.

    I’m with rotl, the black heart at the middle of all this is a Small Core Cabal of Bush ‘yes’ men and Rice – who were ‘read-in’ on the various Compartments – and stayed with Bush while others were getting ‘cut-out.’

    Also, to echo lhp’s post from yesterday – to pull-off what they did, Bush and his Henchpeople had to have the Complicity of the Lawyers.

    If Evidence were to come out that showed Conscious Manipulation of Compartmentalization to Continue Illegal Programs – in Violation of the Rule of Law, the Constitution and the People’s Trust in Government, imvho – that would be Strong Evidence that What Happened to US was a Post-911 Covert Coup d’Etat, planned and executed by that Small Core Cabal.

    It was an ‘Inside’ Job between the Immoral Power Players – who Conspired to Get Away with it – who were only too willing to use all the Power they had to ‘Win’.

    Just like Politicizing Government – Loyalty Oaths are ‘Inside’ Jobs.

    Just like Wall Street – Control Fraud is an ‘Inside’ Job.

    Just like Influencing Contracts – Bid-Rigging is an ‘Inside’ Job.

    Just like Manipulating the Press – Access-Journalism is an ‘Inside’ Job.

    • TheraP says:

      Also @ 80:

      Yup, it seems to me the key is to detach this (a bit) from the whole torture scenario (to which some on the right seem so wedded) – and tie it together neatly in terms of a central conspiracy to subvert the laws via the very compartmentalization you describe.

      Seems to me if you convince Americans that their govt was actively engaging in law-breaking, in manipulating even lawyers to “endorse” the law-breaking, then you can bring the people along. The focus needs to be “law-breaking” and a top-down expectation that underlings would build a “false foundation” for that, via legal memos to support the presidential edicts.

      To me, the torture is central in terms of morality, but the public can’t really deal with that issue (I can hardly deal with it). So for public consumption, we need a case that is palatable but understandable.

      Just MVHO.

  18. radiofreewill says:

    BushCo would have been the perfect target for a RICO – cracking into a Loyalty-based Criminal Hierarchy – except that they were clever enough to hide their actions behind Military Secrecy – in some of Cheney/Addington’s Compartments – or in Gonzo’s Briefcase – that the Military may not have known anything about – in the Mythical War on Terror – including Claiming that the Unitary Executive was Legally, Extra-Constitutionally, Above the Law.

    If Haynes told the Brass at DoD that Yoo said the Unitary Executive was Legal, the Military should have been expected to have Loyally gone along with Bush’s Plans – like they’re supposed to when following the Orders of the Commander-in-Chief.

    At least until it became clear that they were receiving Illegal Orders through Improper Command Influence – Politicization outside the Bounds of the Laws of Land Warfare, the Geneva Conventions and the Convention Against Torture, for instance.

    Making an Improper Command Influence Case would take time, and all Bush would have had to do in order to side-step it would have been to have a Political Appointee ’stuff’ any inquiries, and transfer the ‘Objectionable’ elements to the CIA, and out-source the ‘dirty work’ to Loyal Contractors – ‘cutting-out’ DoD’s Need to Know – while still pursuing his Ideological Policies.

    The only way, it would seem, to have gotten to the Cleverly Hidden Truth of Bush’s Claims would have been through the Impeachment Process…but that seems to have not been possible, either.

    • readerOfTeaLeaves says:

      Match it up with this Sy Hersh synopsis (which I’ve now left on EW’s threads twice in one week 8-0

      The key players behind the redirection are Vice-President Dick Cheney, the deputy national-security adviser Elliott Abrams, the departing Ambassador to Iraq (and nominee for United Nations Ambassador), Zalmay Khalilzad, and Prince Bandar bin Sultan, the Saudi national-security adviser. While Rice has been deeply involved in shaping the public policy, former and current officials said that the clandestine side has been guided by Cheney.

      . Saudi money was involved in what became known as the Iran-Contra scandal, and a few of the players back then—notably Prince Bandar and Elliott Abrams—are involved in today’s dealings.
      Iran-Contra was the subject of an informal “lessons learned” discussion two years ago among veterans of the scandal. Abrams led the discussion. One conclusion was that even though the program was eventually exposed, it had been possible to execute it without telling Congress. As to what the experience taught them, in terms of future covert operations, the participants found: “One, you can’t trust our friends. Two, the C.I.A. has got to be totally out of it. Three, you can’t trust the uniformed military, and four, it’s got to be run out of the Vice-President’s office”—a reference to Cheney’s role, the former senior intelligence official said.

      From Sy Hersh, in the New Yorker article “http://www.newyorker.com/repor…..rsh”>The Redirection“.
      Halliburton’s pipelines and engineering get the oil from the ground to the refineries and distribution networks.

      Khalilizad was a consultant for Unocal, and who else…? Former US Ambassador under BushCheney to the U.N. (haahahahahah!!)

      Your ‘inside job’ list could probably be expanded into AIG, spec markets, and untold other follies.

      pdaly and drational, you are astonishing!!

  19. TheraP says:

    This thread may be effectively dead, but:

    Let’s not forget that torture was “defined” in medical terms as “organ failure.” Now, if they failed to find out how to measure organ failure and if they forgot that the brain is an organ, we may have found a key piece of information, which could effectively nail them on waterboarding. Using their own, flawed reasoning!!!

    (God knows it was torture before that, but this is key, I think.)

  20. earlofhuntingdon says:

    Changing one’s mind – based on new evidence or newly-found applicable law – wouldn’t be evidence of intent to commit a crime.

    I do think the memos on their face are intentionally badly written by bright and experienced lawyers. They must have purposely tortured their logic in order to say “Yes, Sir”. But those e-mails might also demonstrate that what was claimed as “new” was not really new material facts or binding precedents, it was the players applying more make-up, wigs and costumes on an obvious intent to distort the law.

    • JTMinIA says:

      >> They must have purposely tortured their logic in order to say “Yes, Sir”.

      I’m sorry, but logic has no organs. Ergo, it cannot be tortured.

  21. earlofhuntingdon says:

    True, the OLC perverts would know enough to follow their own flawed logic, in this case, based on the false requirement that the pain and suffering be equivalent to “organ failure”. But these guys don’t know the difference between an organ, a muscle and their ego.

  22. JohnLopresti says:

    Ostensibly OffTopic, the Senate Judiciary Committee system administrator in the date range August 2001 to approximately July-November 2003 (see Pickle report dated March 4, 2003, released in redacted form according to several websites, linked version unredacted purportedly) had left permissions sufficiently open that operatives, such as Manuel Miranda, could access confidential emails of the opposition party members on Judiciary cmte. One supposes Judiciary committee had no contact with administration figures seeking to implement the new torcha paradigm. The Pickle report discusses forensics of imaged server backups as part of its replication of what Miranda and protege Lundell accomplished, beginning outside the 2002 timeframe in autumn 2003; however, the lax security in that server was extant in July 2002. Might be a worthwhile place to examine in the torcha policy initiative 2002 epoch as well.

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