The Waterboarding Authorization the Torturers Used?

I wanted to fully explain what I think may be the backstory to the LAT’s revelation that the torturers weren’t aware of the limits in the Bybee Two memo. Here’s what the LAT said:

Beyond that, officials said it wasn’t clear that any CIA interrogators were ever informed of the limits laid out in the Justice Department memo.

"A number of people could say honestly, correctly, ‘I didn’t know what was in it,’ " said a former senior U.S. intelligence official familiar with the inner workings of the interrogation program.

A number of you have suggested (correctly, on the merits as presented by LAT) that if the torturers didn’t know what, specifically, was in the OLC memos, then they couldn’t very well think their torture was legal.

But that assumes they don’t have another document that, they may have been led to believe, authorized the torture they did.

On July 24, 2002, OLC verbally authorized a number of torture techniques, not including waterboarding. Around the same time, DOD urgently asked JPRA–the entity that administered SERE–to provide a list of its techniques so it could reverse-engineer interrogation techniques from them. In response, JPRA sent a memo with an attachment that described its techniques. Sort of.

(U) On July 26, 2002, JPRA completed a second memorandum with three attachments to respond to the additional questions from the General Counsel’s office. The memo stated that "JPRA has arguably developed into the DoD’s experts on exploitation and as such, has developed a number of physical pressures to increase the psychological and physical stress on students …"

In the memo, JPRA informed the General Counsel’s office that it had already "assist[ed] in the training of interrogator/exploiters from other governmental agencies charged with OEF exploitation of enemy detainees."190 The memo also stated:

Within JPRA’s evolving curriculum to train interrogators/exploiters many interrogation approaches are taught along with corresponding options for physical pressures to enhance the psychological setting for detainee interrogation. Several of the techniques highlighted (Atch 1) as training tools in JPRA courses, used by other SERE schools, and used historically may be very effective in inducing learned helplessness and ‘breaking’ the OEF detainees’ will to resist."

The first attachment to the July 26,2002 memo was ”Physical Pressures used in Resistance Training and Against American Prisoners and Detainees."192 That attachment included a list of techniques used to train students at SERE school to resist interrogation. The list included techniques such as the facial slap, walling, the abdomen slap, use of water, the attention grasp, and stress positions. 193 The first attachment also listed techniques used by some of the service SERE schools, such as use of smoke, shaking and manhandling, cramped confinement, immersion in water or wetting down, and waterboarding.

Now, the timing on this document exchange is critically important. This memo was sent to DOD on July 26. The memo was forwarded to OLC (possibly by way of John Rizzo) "for something they were working on," but it’s not clear when (though it had to have been before August 1, since another memo attached with this one was cited in the Bybee Two memo). But on July 26, the day the memo was sent to DOD, at least, OLC verbally approved waterboarding.

Thus, it seems possible that the written description of waterboarding that OLC had when it verbally approved waterboarding on July 26 was the memo sent from JPRA.

I said above that this memo described the SERE techniques, sort of. What it really described was the SERE techniques as James Mitchell and Bruce Jessen had reverse engineered into torture. The memo, SASC tells us, included an emphasis on "learned helplessness," which we know to be Mitchell’s intellectual obsession. And, more importantly, the memo described the torture techniques as Mitchell’s torturers would go on to practice them–not as they were described in the Bybee Two memo. As I’ve reported before, the memo described waterboarding using the large volumes of water that the CIA IG report would later describe was one way the torture as practiced exceeded the torture as authorized in the Bybee Two memo.

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 of the 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.

Attachment one also listed tactics derived from JPRA SERE school lesson plans that were designed to "induce control, dependency, complia[n]ce, and cooperation," including isolation or solitary confinement, induced physical weakness and exhaustion, degradation, conditioning, sensory deprivation, sensory overload, disruption of sleep and biorhythms, and manipulation of diet.

Also note–this memo included stuff, significantly dietary manipulation, that was not included in the Bybee Two memo, but was used with Abu Zubaydah and was ultimately integrated into the 2005 Bradbury memos on torture. (It also included water dousing, which was also incorporated into the torture regime.)

Seeing as how this memo came from the same department that Mitchell and Jessen came from (and which was still championing their torture all over government), chances are good that the torturers did see this document, if not write it themselves. 

See how the gimmick works? CIA gets a verbal authorization for torture that may well have relied on a description of waterboarding that not only included fewer limits, but remarkably described waterboarding as it would be practiced. It gets a written authorization five days later that sets some limits on the waterboarding. But it never shows that written authorization to the torturers.

Tricksy torturers! They’ve invented a way to use this JPRA document–and not the OLC memo–as the "authorization" for their torture.

I look forward to hearing how bmaz and Mary (and the rest of the lawyers in the crowd) rip up this scheme as a legal ploy.

But there’s one more wrinkle.

There were two other documents sent along to DOD and then to OLC with that memo. Another one included some stats about waterboarding and other torture that (as I said above) were cited in the final OLC memo. And the third one is this memo, a JPRA memo explaining all the reasons why torture–and it does use the term "torture"–is ineffective in interrogation.

Conceptually, proponents envision the application oftorture as a means to expedite the exploitation process. In essence, physical and/or psychological duress are viewed as an alternative to the more time consuming conventional interrogation process. The error inherent in this line of thinking is theassumption that, through torture, the interrogator can extract reliable and accurate intelligence. History and a consideration of human behavior would appear to refute this assumption.
(NOTE: The application of physical and or psychological duress will likely result in physical compliance. Additionally, prisoners may answer and/or comply as a result of threats of torture. However, the reliability and accuracy information must be questioned.) 

So, per the LAT, the torturers may well be able to claim they never saw the guidelines in the Bybee Memo. Per the verbal authorization, they may be able to claim they relied on the description sent by JPRA, which happens to describe waterboarding as it was used, not as the Bybee Two memo described it.

But they’d also be relying on an approval process that ties that description of waterboarding directly to a description of SERE techniques like waterboarding as torture, a description that makes clear that torture doesn’t work.

61 replies
  1. cinnamonape says:

    Seeing as how this memo came from the same department that Mitchell and Jessen came from (and which was still championing their torture all over government), chances are good that the torturers did see this document, if not write it themselves.

    Well I can’t see this being a very good legal defense for Mitchell & Jessen if they wrote it themselves. Or knew that the “real” authorization was “in the works”.In fact, it might not be much of a defense for the CIA or contract torturers either. Jessen & Mitchell would have known that the document was a preliminary one sent to the OLC a and so any authorization by them would have been illegal. The only defense would be that M&J lied about the authorities. But would the CIA interrogators be taking their orders from M&J? Not Langley? What about all those cables, every day, sometimes a half dozen or more?

  2. rapt says:

    “…torture doesn’t work.”

    No it doesn’t work as a means of getting good information, and possibly not as a means of getting false information either. But it DOES work to give folks like Cheney, the bosses, a good feeling in their tummy.

    We should be able to conclude, finally, that getting info was NOT the objective of the torture, although the torturers were most likely assured that it was. The objective rather, was to instill terror, injury, death to individuals whom WE had designated as enemy, an inhuman power play.

    • Blub says:

      the more evidence surfaces, the more its become clear that the real motive behind torture (and habeas suspension, and surveillance, and detention without charge or trial, and sending troops to invade Buffalo, and assassination squads, and citizenship cancellation, etc., etc., etc.) was about extending the power of the Presidency to autocratic and absolutist levels. They set out to break the Constitution, and they succeeded in stretching it to a point that it will be find it extremely difficult to return to its old shape.

    • emptywheel says:

      From the SASC report:

      According to Acting CIA General Counsel John Rizzo, the techniques that the OLC analyzed in the Second Bybee memo were provided by his office. In his testimony before the Senate Select Committee on Intelligence, Mr. Rizzo stated that his office was “the vehicle” for getting the interrogation practices analyzed in the Second Bybee memo to the Department of Justice.”


      Mr. Haynes, the DoD General Counsel, recalled that in the context of reviewing the list ofSERE techniques provided to his office, that he may have been “asked that information be given to the Justice Department for something they were working on.”

  3. BoxTurtle says:

    Creative. This will have the effect of protecting some of the folks who actually did the torture. And it adds in a new posible level of obfuscation: I followed the limits set in the [redacted] memo, but I never saw the [redacted] memo that changed the approved techniques.

    They don’t care anymore if the torture worked, what they care about is showing their actions were authorized by [redacted]. I think the new plan is to pin all the illegal acts on folks that Obama doesn’t want to prosecute.

    It’s frustrating, because ObamaCo certainly has DAMNING evidence against BushCo yet refuses to let the courts settle the matter.

    Boxturtle (What’s the criteria for charging someone with accessory after the fact?)

  4. fatster says:

    Oh my goodness. You’ve already got a new one posted here, EW. Let me link this O/T first and then read your new article.

    O/T, why does the O-team want to be Big Brother, too?

    White House proposal to track government website users stirs fears

    “A White House proposal to end a long-standing policy forbidding government websites from tracking users could lead to “the mass collection of personal information of every user of a federal government website,” says the ACLU.

    “Civil liberties groups like the ACLU and the Electronic Privacy Information Center are lining up against a plan, proposed by the Obama administration, to end a policy that has been in place since 2000 preventing government websites from installing tracking cookies on users’ computers.”


    • BoxTurtle says:

      Every other website collects that information. Most use it in ways that the average person would not approve.

      Oddly, I think the WH announcement is good. It may attract attention to what all these websites are doing and perhaps lead to legislation banning certain tracking practices.

      Boxturtle (Especially hates probes and tracking cookies)

      • fatster says:

        I agree. I hate cookies. And the last entity I want to be tracking me is the gubmint. I wish they’d get back to the business of governing in accordance with the Constitution and Rule of Law, and leave my privacy the eff alone!

  5. fatster says:

    So they were all scurrying around writing memos, differing memos to fit all sizes and types of torment, I guess. This is such sickening stuff and it is appalling the effort that is not being exerted into shining a bright light on it all, cleaning house and bringing charges when appropriate regardless of the rank/position of those ultimately responsible for development and implementation. This situation is twisted from top to bottom. I despair.

    Thanks for the article, EW. Your efforts deserve maximum kudos.

  6. bmaz says:

    For starters, this is exactly the kind of convoluted mess I was contemplating yesterday when I said the only people the DOJ are contemplating prosecuting are the exact people with the greatest number of available defenses. Well here is another one. That is why Holder’s prosecution plan is adesigned sham.

  7. Jeff Kaye says:

    They are preparing their “I was just following orders” defense, or rather, that they relied on their superiors to give supervisory guidance.

    You are correct that they were following procedures they themselves, or their close colleagues, had written. But the supporters of M&J are miffed at the CIA, who came to them in the first place to initiate the project, and who knew, years before, of the effects of “learned helplessness” and the waterboard. In fact, that’s why they went to them, as they were the “experts” in it.

    Everyone involved was playing a double game to cover themselves, and now, when the heat is on (sort of), everyone plays the old Hogan’s Heroes Schultz game: “I know nothing… nothinnnng!”

    • klynn says:

      Everyone involved was playing a double game to cover themselves, and now, when the heat is on (sort of), everyone plays the old Hogan’s Heroes Schultz game: “I know nothing… nothinnnng!”

      In some ways, what they are playing is even worse than, “I know nothing.” It’s more the “playing the victim,” in a false, “No one told us what we were doing was wrong. We thought we were doing everything correctly,” kind of BS.

      • Synoia says:

        It’s a variation of “I was following orders”

        Put it to a jury, and let’s see how it flies.

  8. earlofhuntingdon says:

    Efficacy of methods, command authorization to use them, and the legality of orders or opinions are discrete things.

    What you describe is a process that would intentionally obfuscate what actions were ordered or permitted and separate them from conclusions about their legality. It intentionally substitutes confusion for legally required and adequate permission.

    Presumably, that Cheneyesque process was implemented with two goals in mind: persuading interrogators to “take the gloves off” – Cheney’s euphemism for torture – and to create a tangled case, one with so many twists and turns a jury would never be able to agree on the existence of the elements of a crime, without which it could not unanimously conclude that one took place or who committed it.

    That process is typical of how Cheney – the self-described master bureaucrat – abused the federal decision making process so that he could govern without the legal authority to do so. It describes his presidency and its central feature – rule by illegal intimidation and fear – in a nutshell.

  9. BoxTurtle says:

    They are preparing their “I was just following orders” defense, or rather, that they relied on their superiors to give supervisory guidance

    That defense won’t work in front of a jury unless the defendant testifies against his superior. It MIGHT work in the court of Obama, who will likely pardon anyone he thinks was honestly “just following orders”. He’ll need to do that to maintain diplomatic relations with CIA.

    But the plan is still to keep this from coming in front of a judge.

    Boxturtle (At what point do ObamaCo’s actions constitute Obstruction?)

    • LabDancer says:

      To me, this seems a pretty good jumping off point in addressing fearless leader’s invite:

      I look forward to hearing how bmaz and Mary (and the rest of the lawyers in the crowd) rip up this scheme as a legal ploy


      I actually think we’ve been through this before at some point over the last couple of years; but it’s certainly worth considering again.

      Anyone motivated enough to look into the body of law on the defense of ‘just following orders’ is going to find it relatively undernourished.

      There are a number of reasons for that condition, and you can always point to various historical counter-influences, like the rationalizations against & limiting it from & deriving from Nuremberg [the name being among what I’d clump together as several ‘practical/social limiting factors, since every time it’s come up in any case I’ve been involved with, it’s ALWAYS called the Nuremberg defense; just imagine the sort of effect that has on the civility factor of jurisprudential discourse, particularly on those with personal memories of WWII, which until into the 1990s most judges possessed.]

      The alternative phrase — more correct & precise but invariably countered by the “N” word, at least, as I noted, into the 1990s — was something like ‘official error’, or, my favorite, ‘officially induced error’.

      And considered in those more antiseptic terms, I’ve always argued it operates along lines similar to those associated with the more classical conception of the INSANITY defense, i.e.: a person suffering from an honestly-held but irrational delusion can argue any & all legal positions, defenses included, that arise IN that delusion; eg. an honestly-held yet irrational belief that a person is about to be attacked with deadly force would justify use of deadly or deadlier force in response, to secure one’s continuing survival, ie. self-defense.

      [For those who might be inclined to over-reaction, understand there are typically quite serious consequences to arguing the insanity defense, which in certain cases can render it impractical to raise; eg. deliberately speeding through a playground zone due to an irrational delusion of being suddenly set on by giant ninja turtles.]

      • Jeff Kaye says:

        Yes, the Nuremberg Defense is very much on their minds these days. This is why, as I went into some detail on the fight within the American Psychological Association recently over the maintenance of an “ethical standard” meant to buttress such a defense. This has implications far afield from APA internal politics. Imagine what a jury will think when introduced into testimony on a trial of a torturing psychologist, the written standard of this august group of professionals (and august is said with dripping irony):

        APA’s alliance with national security interests is also exemplified by the years of foot dragging over promises to change the text of their Ethics Code standard 1.02. This portion of the code addresses conflicts between professional ethics and organizational demands, stating that where such conflicts are “unresolvable… psychologists may adhere to the requirements of the law, regulations, or other governing legal authority.” Recently, APA’s Ethics Committee resolved that no change in the language of 1.02 was necessary.

        As Scott Horton at Harper’s noted last month, 1.02 “dovetails perfectly with a scheme introduced by Defense Secretary Rumsfeld to undercut the ethics standards of lawyers, doctors, and other healthcare professionals by binding them strictly to the laws and regulations as definitively interpreted by him as Secretary of Defense (DOD Policy Directive 3115.09).”

        It is a full-throated repudiation of the rule fashioned at Nuremberg under which individuals involved in the torture or abuse of prisoners are not entitled to rely on a defense of superior orders. The APA was saying that Donald Rumsfeld and Dick Cheney were free to suspend the organization’s ethics rules whenever they chose to do so.

  10. tjbs says:

    Torture leads to murder

    Murder leads to treason

    Treason is torturing human beings that reside in another country for information that has nothing to do with Osama or 911 but just to show how far crazy christians can go when dealing with Muslims. Between the rendition ,the invasion and the unlimited torture these actions created more defenders of their lives or “terrorists” than we could ever defeat. Giving aid and comfort to our enemies by consciously and purposely acting to aid the enemy in recruiting of justifiability enraged victims who would resist our actions, seems to fit the definition of treason to a “T”.

  11. tjbs says:

    God damn it I know when I truss someone up,crucify them, and they die it’s against the rules of human decency and so did they. Cut the BULLSHIT and prosecute from the top LEADER to the guy that mopped up the blood, we can’t let a single one of these trained monsters back among us.

  12. Loo Hoo. says:

    This is the first I’ve read about the introduction of smoke as a torture technique.

    You don’t suppose it was introduced via hookah, do you?

  13. Mary says:

    It’s too long and weedy to get into what I’d really like to get into right now and this isn’t all that great a link bc it is a different fact and law setting, but here’s a thumbnail on some thoughts and a link.

    First off, torture is a specific intent crime. This doesn’t really mean what Yoo and esp Bradbury would like it to mean, but still, it is a specific intent crime. Making something a specific intent crime is intended to protect innocent actors – keep that in mind. Still, avoiding the weeds for now, let’s say that the normal thing for every specific intent crime happens. The defendant/torturer says – I didn’t intend to torture when I was repeatedly slamming a man I had =kidnapped, stripped, hooded, anally assaulted and isolated -into a wall headfirst.

    Things don’t end there, bc then you would never have a conviction under a specific intent statute. So you look inferred and presumed intent, where actors are presumed to know, or it can be inferred from other evidence than their statements that they knew, that the “natural and probable” consequences and/or perhaps the “reasonably foreseeable consequences” and/or the actual initial consequences of acts they continued to repeat were torture.

    So on an evidentiary front, defendant says – “I didn’t mean to, so bye y’all” Prosecution then has to come up with evidence to demonstrate that a sane person of reasonable non-moronic intellect would have known that the consequences of the actions were torture. There’s a beaucoup boatload on that, to establish very strong grounds for inferences, presumptions and actual knowledge.

    So then the defendant is going to say – well, while all that objectively means I’d have to have alien DNA and a mental disease or defect not to have intended to torture no matter what I am saying, here – take a lookee at this affirmative defense. It seems I have a lawyer with alien DNA and a mental disease or defect too, and they gave me a written opinion that I was good to go as long as I didn’t ejaculate more than once per 12 minutes in any given torture sesssion. Or whatever.

    I can’t find a fast online jury instruction that would be typical for this kind of assault based crime, but here’s a kind of an idea of what the defense of good faith reliance on advice of counsel would be described to a jury as requiring (this is not a great example for several reasons, including the fact that it is factually meant for a “vexatious” (malicious) lawsuit instead of an assault based crime, but it shows where things would be going):

    Under our law, a defendant in a vexatious suit action has a complete defense to that action if (he/she) can prove by a fair preponderance of the evidence that (he/she) instituted the underlying civil (action/proceeding) against the plaintiff in good-faith reliance upon the advice of legal counsel, given to (him/her) after (he/she) has made a full and fair statement to such counsel of all facts (he/she) then knew or should have known concerning the basis for the underlying action. The fact that counsel’s advice was unsound or erroneous will not affect the result.2 This defense is designed to protect the interests of common citizens who, unschooled in the law, would otherwise be forced to put themselves at great financial risk every time they resorted to the courts to assert their legal rights.3
    Consistent with this purpose, the defense has five essential elements which the defendant, , must prove by a fair preponderance of the evidence if (he/she) is to prevail upon it in this case:
    1. That (he/she) consulted with legal counsel about (his/her) decision to commence and prosecute the underlying civil (action/proceeding).
    2. That (his/her) consultation with legal counsel was based upon a full and fair disclosure by (him/her) of all facts (he/she) then knew or should have known concerning the basis for the underlying (action/proceeding). No person can justifiably rely upon advice that (he/she) knows or should know to be untrustworthy due to (his/her) own failure to disclose relevant information to the person giving the advice.
    3. That the lawyer to whom (he/she) turned for advice was one from whom (he/she) could reasonably have expected to receive an accurate, impartial opinion as to the viability of the underlying (action/proceeding) against .4 Thus, although all lawyers are officers of the court, who are bound by their oaths “not knowingly [to] maintain or assist in maintaining any cause of action that is false or unlawful,”5 the law recognizes that they too are people whose judgment may sometimes be clouded by their personal allegiances, sympathies and prejudices. Where, then, a person claims that (he/she) has relied upon the advice of counsel for (his/her) decision to commence and prosecute an action or proceeding against another person, (he/she) must show that (his/her) counsel was one (he/she) could fairly have presumed to be unbiased and unprejudiced against that other person6
    4. That, having sought such advice, (he/she) relied upon it. If (he/she) did not, then of course (he/she) has no defense even if counsel was consulted.
    5. That (his/her) reliance on counsel’s advice was made in good faith.
    As used in the defense of good-faith reliance upon the advice of counsel, good faith is the genuine belief that one’s underlying (action/proceeding) was fully justified, both in law and in fact.

    OK – not the worlds best example but it gives you an idea of what good faith reliance is going to entail.

    So if, instead of relying on counsel, you have guys who are relying on a third parties’ extrapolations, well, to start with that’s just not advice of counsel.

    This is why I think they are going to have Rizzo in the loop on whatever was done -whether he gave verbal or written or formal or informal approvals. You can also see all the areas of failure – lack of facts, incorrect facts (Yoo specifically limited his opinion to al-Qaeda members having high value operational knowledge – Zubaydah fails on all fonts there), failure to get the opinion before acting, reasonable belief that lawyer who wouldn’t share advice with other NSC council was impartial, etc.

    Still, if you don’t end up with Rizzo or with the in hand opinion, it’s going to be pretty darn interesting to see how you argue anyone was relying on anything. So what Holder is doing is artificially inserting a new standard of “prosecutorial belief in a piss poor criminal and contemptible opinion issued by partisan actors in secret, based on lies and misrepresentations that were known to the partisan actors to be lies and misrepresentations, issued for the purpose of obstructing criminal charges, and never actually delivered to the actors” as substituting for the individual actors’ good faith reliance on an opinion they requested before acting, which was delivered to them before acting, which was based on correct facts, upon which they acted in strict compliance. None of the actual elements of good faith reliance can or do apply to even the acts as described in the memos, but Holder is saying that he’s going to act as if they do.

    Ok, so then you add the overlay that EW is suggesting here, that someone like Mitchell, not a lawyer (and not even a gov actor – an independent contractor) was used as the person setting the on the ground rules and those were being based on something other than the legal opinions that were eventually issued. How Holder macrames his “get out of jail” plantholder with that material is a confabulous thing to ponder.

    Still, it might be somewhat evidentiary for the persons claiming that inferences, presumptions and actual results re: activity they continued to repeat should all be overcome on the specific intent issues by their reliance on Mitchell. But then you go to what it is they were relying on Mitchell for – his purpose. His purpose was to “break” detainees and to experiment on them to achieve a “state of learned helplessness” That’s not covered by any of the memos bc there’s no way you get around the long term psych damage if you do look at that issue. The whole purpose of the learned helplessness aspect is to cause long term disruption of mental states. So torturing to create learned helplessness – that’s not an subjective “intent” that gets you out from the torture statute, bc that is a defined state of torture.

    And btw, if anyone looks back at the declarations filed in the Padilla case re: the detentions that Luttig authorized, it is very clear that they were all about causing long term mental states damage to the detainee. They pretty much spell that out for the judge — that they are engaged in isolation and helplessness experimentation on the detainee and they have to be able to keep him in isolation until his mental state is such that he has abandoned all hope. They don’t bother to even disguise it.

    Yet DOJ has now made that a part of our national body of law. It’s so damn evil.

    • emptywheel says:

      Thanks Mary. Appreciate the detailed comment.

      As a reminder, Rizzo was willing to say clear in his SSCI confirmation hearing that he advised CIA people that this stuff was legal. (Don’t believe he was asked about contractors though).

      • Mary says:

        LOL – actually that was the cursory, surface skimming comment. *g* It’s like bmaz mentioned, so much out there to be dealt with that lawyers would salivate.

        Making me still want to go back to an investigation/prosecutor for the misrepresentations, obstruction and failure to perform in accordance with ethical standards within DOJ and in regard to its interactions with Congress and the Courts. That kind of approach is the only thing that is going to be broad enough and create some clear enough issues to whack the laywers off at the knees and its pretty clear that if the lawyers involved in all of this don’t face consequences, it is not only a pattern for continued criminal conduct within the DOJ, it is also an even more disturbing mission fail for the success of representational democracy.

        They likely won’t face consequences for just “bad advice” so you have to go to the heart of the rest of what they were doing. Plotting to keep opinions secret from courts and Congress; failing to make diligent inquiries into law and fact; failing to preserve and cooperating in the destruction of evidence implicated in numerous court actions and Congressional inquiries; assisting in misrepresentations to the court and Congress, etc. – that’s where you are going have a broad enough (but wholly non-partisan and defensible) mandate to any investigator to get into all the real nitty gritty and the fallout, IMO, FWIW.

        • Peterr says:

          The phrase “ignorance of the law is no excuse” keeps rolling through my non-lawyer head — but the “I know nothink!” refrain keeps popping up as well.

          Even so . . .

          Once we get to the “Plotting to keep opinions secret from courts and Congress; failing to make diligent inquiries into law and fact; failing to preserve and cooperating in the destruction of evidence implicated in numerous court actions and Congressional inquiries; assisting in misrepresentations to the court and Congress, etc.,” then we’ve moved from ignorance into willful actions contrary to law.

        • bmaz says:

          Peter, the defense here will not argue ignorance of the law. Quite the opposite, they will argue knowledge of the law and compliance with what was know and, under the circumstances, able to be known. They will then talk about the secret law that nobody knew about. This is not an ignorance of the law deal.

        • Peterr says:

          From Marcy:

          So, per the LAT, the torturers may well be able to claim they never saw the guidelines in the Bybee Memo. Per the verbal authorization, they may be able to claim they relied on the description sent by JPRA, which happens to describe waterboarding as it was used, not as the Bybee Two memo described it.

          If Bybee laid out “the law,” and the torturers claim they never saw it (thus, the “secret law” to which you refer) but had to rely on the verbal authorization that — oh, by the way — conflicts with it, they would be claiming ignorance of “the law.”

          I don’t think we disagree here at all.

    • bmaz says:

      Let me piggyback a little on Mary here. did you notice all the contrivances and non-sequiturs she points out in all this? They are everywhere. They are substantially in the areas of authorizations, and foundations for authorizations, for tortuous conduct. Every one of those points is a legal mess, but in front of a jury, every one of those is an individual and cumulative area for the argument of reasonable doubt on the behalf of the poor individual defendant on trial. And that will be exactly how it is played.

      Then, above and beyond the foregoing, the defense is going to call the higher ups that were involved in crafting that confusion. Those witnesses are either going to breathlessly claim how legal it all was (because their ass is on the line too) or they are going to plead the fifth. Either way, the defense has another direction to point fingers.

      The above is just scratching the surface of what a good crim def atty is going to do; the defense will hold court for weeks doing this and then wrap it up with a slick, eloquent and passionate closing invoking 9/11, the service to and defense of country, and the compromised position the defendant was placed in, by superiors and the highest levels of government including the White House and then ask the jury “How in the world can you not find reasonable doubt here? Ladies and gentlemen, it would be patently unreasonable not to have complete doubt. Please, retire to the jury room and cast your vote in best conscience knowing that this man next to me did his level best to protect your health in doing so and did that under what he was told, and commanded, were legal, appropriate and necessary means.”

    • R.H. Green says:

      The intent is a subject worth pursuing. You have pointed out how the objective for the enhanced techniques was to induce a state of learned helplessness. Since most of the discussion on this broad topic of torture is legally oriented, allow me to make a small contribution to the general understanding from one more familiar with the psychological research underpinning the subject of learned helplessness.

      The field of Psychology has a poor grip on the eitiological (causative) aspect of Depressive disorders. A favorite view has concerned a “neurological imbalance”, but Martin Seligman posed the question as to whether it could be a matter of learned behavior (more precisely a lack of behavior, a prominent feature of Depression).

      Seligman placed dogs into a wire cage and electrified the flooor, which allowed the dog’s feet to recieve shocks. The cage was divided in half, with a low barrier between, and an insulating pad on one side, which provided a shock-free zone. When shocked, the dogs became agitated and animated, leaping about randomly, until by chance jumping into the safe zone. Soon all the dogs in this control group learned the escape manuever, and the process was called “learned escape”. This group never developed symptoms of depression. The experimental group of dogs, however could not make this escape, as the dividing barrier was raised to prevent it. These dogs could do nothing to escape the shocks, and eventially became passive, and evidenced symptoms of (dog’s version of) Depression. This process was called “learned helplessness.

      Reading Mary’s discussion of intent set me to thinking that if the purpose of interrogation is to extact information, it would seem that the learned escape paradigm would be more fruitful, in that by learning to cooperate and disclose leads to escape from the aversive conditions. Yet the learned helplessness paradigm provides no incentive to cooperate, and seems to undermine the mental integrity of the subject, rendering any information unreliable. It could be that such a paradigm could be regarded as a “preliminary” step going towards a learned escape format, but still this doesn’t square with the debilitating mental consequeces of helplessness. The only “redeeming” value that remains would seem to be to destoy the evidence of torture, by destoying the credibilty of the detainee’s testimony, if it ever became relevant. However a less cynical analysis (really?) would suggest that there was no thought given to these matters, but only to the prospect of making some money from the available technical”expertise”.

      • Mary says:

        Just lost my comment, so here’s another try.

        I think you’ve provided some interesting additional info. You really had both situations going on simultaneously, on different levels, didn’t you? One set of mental torment – the isolation and being disappeared – was constant and inescapable and intended to be so. The Padilla declaration made that really clear – they flat out tell Luttig that he has to be kept in total isolation to fully and thoroughly deprive him of any hope of assistance or escape, ever, as part of their interrogation plan. It’s pretty damn chilling and it did go on that way for years. All kinds of “top” DOJ lawyers involved over and over in his case, and a Judge who was seriously being considered for the supreme court, and yet you had years of intentional mental torture in isolation of a man never charged.

        Anyway – I digressed there. The isolation/disappearance element with the blacksites could be even more dramatic in their impact (foreign languages, unfamiliar countries, etc.) On the other hand, the torture memos flesh out what a detainee had to do to avoid being tortured – how a detainee HAD to be participatory, or be tortured. It was and is horribly sick.

        From my comment back then:

        One of the really disturbing parts of the memos was the description of how a detainee avoided getting tortured. To do that, the was a ‘high threshold’ requirement of the detainee offering up information on existing planned future attacks. If they didn’t give that up, they were in line for torture. If they didn’t have it to give up -? We know what happens then. What always happens when people adopt *torturer* as their persona.

        If they didn’t give up information on planned attacks, they were tortured. Over and over. But there was a temporary respite on that torture – to leap the reality barrier.

        I think when you mention, “The only “redeeming” value that remains would seem to be to destoy the evidence of torture, by destoying the credibilty of the detainee’s testimony, if it ever became relevant” that is something really uncomfortable but something that can’t be ignorned. Why were these guys kept so long after their initial torture in more torture? Why was Padilla kept so long? (His lawyers had weird stories IIRC about how he wouldn’t talk with them when they were finally allowed to meet with him bc he was fixated on not saying or doing anything that would hurt the US & BUsh in the GITMO cases – very weird and it doesn’t sound like the kind of thing that happens by accident in even a stressed mind.

        They knew all along they were breaking the law and would have warm bodies on their hands when all was said and done. They apparently had discussed a final solution for Khalid el-Masri, but there were a lot of Macedonian witnesses. But if you have psychologists and torture approvals and black sites at hand, coupled with the ability to destroy evidence and stamp anything you want states secrets and get anything you want from DOJ, including having them *go to court* with torture for you, then why wouldn’t someone like a Mitchell do what he could to break minds in ways that provide cya as a follow up to breaking minds to supposedly get intel?

      • Hmmm says:

        Excellent background info, thanks much for that. From that POV, it would seem that the practice of suspending torture whenever information would be given counterproductively reinforced the learned escape behavior — ‘counterproductively’ because the suspension occurred even if the given information was false, because it would take time to try to figure out whether the info was true or not. Now, that’s an extremely interesting thing, because anybody familiar enough with the learned helplessness theory should also have known about the learned escape theory (should they not have?). So… what competent scientist could have in good conscience even suggested such a thing, when the counterproductive outcome would be so obvious to anyone who understood the underlying research? Does this mean M-J are (oh merciful god in heaven forfend!) just plain poor scientists?

  14. melior says:

    White House proposal to track government website users stirs fears

    Look, I’m a proud card-carrying ACLUer, but a simple Firefox plugin easily protects me from malicious cookies. There is unfortunately, as yet, no such browser plugin to protect me from John Poindexter hoovering every damn byte I send through a secret fat pipe into NSA mainframes for later datamining.

    Some perspective, please.

  15. oldtree says:

    Thankfully, the law of the land, the agreements laid out in theGeneva Conventions, the Army Field Manual, are all well known documents that say what you can’t do. If any of the torturer’s had any questions about their work, they had numerous sources to tell them what was against the law. Nothing given them by a president’s own signature overrides that law. If this is understood by the torturer as well as it is the lay person, we have people willing to act outside the law. Everyone from the top on down appears to be, or they resigned in protest, which many did.
    What is confusing? Only the backstabbing now as to who said what to whom and when, where, why, how. It’s a crime scene that never ends. This time it is a “voice only” other times it is a written memo. All of which are evidence of conspiracy that leads to the top. I wonder why there is any confusion remaining with everyone having admitted doing it? Their excuse is they were told to. The SS and the Gestapo used that excuse. The Wehrmact had numerous people convicted and acquitted of these crimes. The Japanese had numerous people tried for similar crimes, and many were executed. Precedent is well established.
    What are we waiting for exactly? I guess our reputation in the world can remain a joke for another day. Only criminals want to come to amurka. If they can’t fight the mob or government where they live to make a dishonest dollar, they come here for a fresh start. We are running a recruiting shop for the worst of humanity.

    And thanks to Sibel Edmonds for being a real hero among so many pretenders.

    • bmaz says:

      Actually, the Army Field Manual condones a shocking amount of the torture we committed (short of waterboarding) and continues to do so to this date. As for the other sources of “law” you list, when the people responsible for prosecution of those laws are the ones authorizing and condoning the conduct, I do not think the situation is anywhere near as clear cut as you seem to think it is. Defending the subjects of the limited bullshit indictment Holder and DOJ are contemplating would be a criminal defense attorneys wet dream; huge fees and more defenses than you could shake a stick at. They are salivating at the opportunity.

      • oldtree says:

        Would that those who are responsible for investigating, would. The AFM was an extreme, and it was exceeded. We just go too far to the edge of reason if we think these people didn’t know they were committing crimes. I am reminded of Dr. Strangelove, Where more and more drove GC Mandrake to question why things were going on around him when nothing dictated it. We have to believe our players are insulated from reality. They could not tell that America hadn’t been attacked again, there was no actionable intelligence saying it was going to be etc..
        A conspiracy to commit horrific war crimes on a group of people taken prisoner on foreign soil. They didn’t start torturing people until they realized there were no more threats to the country. I would like to see it added up in some other way. The other side of the aisle can be as ignorant and ashamed of their vote to authorize war on flimsy or no evidence. Too many things add up to plunder to ignore the inherent crimes required to gin up the need for war in the people’s eyes. Marcy and you have hit subjects that tie so much of this together, we all await someone willing to investigate.

        • bmaz says:

          You are right, would that it could be investigated and dealt with appropriately. Agree 100%. To me, however, prosecuting only lower level people with a predetermined ban on going further is not just a bad idea, it is obstructionistic. And a plan, for the reasons stated above, designed to fail. Not saying they aren’t guilty, they are; just that it is a loser case and method of prosecuting.

        • sporkovat says:


          you say ‘baloney’ – but the rest of your posts today were way above this 4th grade discourse.

          oh good grief, Charlie Brown!

          please explain why the brave Mrs Edmonds is supposed to be persona non grata?

        • bmaz says:

          Sorry, nothing personal intended there, but the Sybil Edmonds stuff that keeps getting propagated is just way out of line from reality. We have literally had people (not you; sorry about the crossfire you stumbled into) berating us for not writing posts on Edmonds. Well, there just was little new or exciting from that trumped up depo. And Marcy is dead on the money with her description of the very narrow and short window that Edmonds had on the events she supposedly witnessed. From my perspective, the only thing of note whatsoever from the big depo were the salacious allegations about Jan Schakowski which, though interesting, have nothing to do with the subjects we cover here.

        • sporkovat says:

          yeah, ok I wasn’t aware of that prior discussion.

          in general, though, she seems like a voice in alliance with issues of concern here – emptywheel just had a post earlier on awaited announcement of a state secrets policy by the Obama DOJ – and state secrets is obviously a big area of advocacy of hers.

      • Leen says:

        I’m with you on that. Sibel along with Jason Leopold have taken a lot of hits at FDL…and now Jason comes to add comments, his insigts and be part of the debate here

  16. acquarius74 says:

    Back on 02/05/2002 a Memo was sent to Pres. Bush from The Veteran Intelligence Professionals for Sanity, the same day of Powell’s infamous speech to the UN. This group now totals more than 70 members, all former officers of the Intel Community. Without further ado, I’ll recommend that you read the Memo to Pres. Obama dated 04/30/2009, intro to which you will find in my today’s diary over at Seminal. It is not my horn I’m sounding, but this courageous truly intelligent group’s warning to Bush and now to Obama.

    Were I a juror and this Memo and it’s introduction were presented as the prosecution’s concluding statement, and if my vote counted for anything; then the Bush/Cheney cabal would leave the courtroom in shackles.

  17. tjbs says:

    Marcy & Mary & all the other faithful out there,
    Saturday would have been my Mom’s 91th birthday
    , I haven’t heard her voice in over 40 years but here I hear a faint whisper of her voice from the past
    “Don’t even try to tell me you didn’t know that was wrong……” Bless you all mightily

    • acquarius74 says:

      Bless you, tjbs, for being the messenger through which your Mother’s wisdom is shared with us. Thank you.

  18. NorskeFlamethrower says:


    Citizen emptywheel and the Firepup Freedom Fighters:

    Thanx for another important post on this issue…the few bucks I tossed your way to continue your important work are payin off a lot better’n my poor 401K. The entire festerin’ sore of the torture of detainees needs investigation and it needs to start right now…I don’t care if the initial authorization is “limited”, because there is no way that an honest prosecutor will not be forced to extend the investigation as more and more criminal acts are uncovered.

    Let’s get healthcare done in September and get Dawn Johnson sworn in shortly thereafter and let the wheels of justice begin their long grind.


  19. R.H. Green says:

    You astutely got my point regarding the “redeeming value” bit, but I’d hoped you’d chew a bit on the research info I was feeding you. The fact that Mitchell et al were pursuing a learned helplessness model for their interrogation strategy should have occurred to me before today, as long as it’s been in the discussion here, but it didn’t. When it did, it hit ‘tween the eyes:this model makes no sense for interrogation. Presuming what one wants is information, one wants it provided upon demand by a motivated provider, who gives complete details and nuances. Classic torture works by what is called negative reinforcement, in which a behavior such as answering questions is developed and maintained by the application of agony-producing stimuli, and which is then removed contingent upon desired behavior. Seligman’s escaping dogs is a paradigm example. Even (as Hmmm suggested) if the reponses are false, further refinements to the contingencies can require truthful responses, after they begin talking.

    But learned helplessness calls for the application of the punishers noncontingently, and no escape response is possible. You cited that the torture memos called for escape responses, in that cooperation produced relief from the agony. This is not a description of a learned helplessness paradigm. There is something dead wrong about this story. Things are not being described properly, and I cannot see how the LH model gets a motivated talker. What you get (if done competently) is a demoralized, uncaring, preferring to die to end his agony, possibly deranged individual, certainly somewhat detached from reality (think how you would be if subjected to Seligman’s uncontrollable shocks; survival extracts its costs). What could you expect from such an individual? Certainly not reliable intelligence. Which raises the technical question: then why do it that way, or say that’s what your doing? It would seem that those of a legal persuasion would want to know that too.

    • bmaz says:

      Outstanding discussion RHG. And you make a very important point about the fundamental incompatibility of the theory with the desired result. You know, I have seen a lot of different commenters, a few here, some other places, over time say things to the effect of “Bush/Cheney didn’t care about getting information, they were just sadists who got off on the torture” and “getting useful information is never the intent of torture”. I think that is wrong. Torturers, evil as they may be, often do really have the intent of gaining credible information through their acts. And, quite frankly, it is also dead wrong that credible information is never obtained by torture; it most certainly is, the problem is that there is so much completely bad and false information also adduced that you cannot distinguish between the two and nothing credibly reliable and usable results. My point here is that I am actually willing to grant that these dopes desired usable intelligence, they were just so incredibly stupid, dense and over-amped that they ended up where they did. How they disregarded the forever known truth that torture simply does not yield the consistently reliable and actionable information I don’t know, craveness and single mindedness I guess, but once done they were off to the races and you end up with people like Mitchell and Jessen.

    • Mary says:

      I wish I had the time and expertise to get more into the issues you are raising, but I hope that you will stick around in the threads and do that, especially as people like Jeff Kaye and drational check in and out.

      Here’s a bit more, scattershot and epu’d, but fwiw.

      The Jacoby declaration filed in Padilla’s ongoing detention-…..030109.pdf

      is worth a read imo.

      On the torture memos front and how they interweave with something like the Padilla case and Luttig’s decisions there – I do think you have techniques for both learned escape and learned helpless being used, perhaps in competing and contradictory applications, but both there. Some detainees like Arar (who was being tortured in our Syrian proxy-prison and not by us directly) talked about how being in the continuing, uninterrupted isolation was in some ways worse than the torture sessions. Our detainees at black sites had even more extreme isolation. Nothing that a detainee could do ever made any adjustment in those aspects – except to the extent that you list the ability to talk with with an interrogator as the break, but that is something known by the detainee to only provide a temporary respite and that the return to isolation is inevitable and continuous.

      As the black sites were stacking up years of isoaltion detention, the US courts (or at least the 4th circuits) were ruling that not just indefinite detention, but indefinite isolation with depraved treatment ongoing behind closed doors was appropriate under the US Constitution for American citizens taken first into the custody of the Dept of Justice in the US and then handed over for torture detention by the DOJ to the military. So you were getting a judicial blessing on military experimentation on US citizens taken without charge and held in isolation. This was under the argument made by Jacoby that disappearing a US citizen behind a military veil for hidden interrogation was a “trust building” process.

      Back to the black sites torture memos, you also have what seems to be a learned escape model, where the memos acknowledge a set up that involves a thirty day period where an interrogator can go in to question a detainee and, unless that detainee provide a high threshold of cooperation involving giving up operational inforamtion about plans against the US, they will have “enhanced” interrogation. But that model isn’t dependent on the quality of the information, and is also set up so that if the detainee has nothing to provide, there is no realistic way for them to truly get to the “escape” point without a stream of lies.

      Now lets add something that wasn’t in the memos, but was in a NYT article on one of the interrogators, “Deuce” Martinez.…..wanted=all

      As described here, the interrogators and torturers had an artificial layer between them. The interrogator asked questions, decided if they were getting enough cooperation, if not, they signed off on the transfer to torture. The torture would not necessarily take place immediately, and after the torture it might be days before the detainee was again questioned.

      In the Hollywood cliché of Fox’s “24,” a torturer shouts questions at a bound terrorist while inflicting excruciating pain. The C.I.A. program worked differently. A paramilitary team put on the pressure, using cold temperatures, sleeplessness, pain and fear to force a prisoner to talk. When the prisoner signaled assent, the tormenters stepped aside. After a break that could be a day or even longer, Mr. Martinez or another interrogator took up the questioning.

      And they’d bring dates.

      Now, in addition to the learned helplessness, learned escape, Jacoby strange version of “trust building” (that involved extreme isolation, maltreatment and possibly, but oddly, drugs such as pcp, which have been mentioned by other detainees as well and seems to have little to do with getting truthful, helpful info) there is another model that “they” (although more the military than the cis) have offered up is the “mosaic” theory – which is that all kinds of people, just by virtue of being in various areas and having geographic and tribal knowledge, etc. – can provide bits of interlocking info that can form a mosaic of operation intelligence. Under this model, it was ok to engage in interrogation and enhanced interrogation of non-combatants and non-enemies, bc they just didn’t know what they had to offer until you started squeezing.

      Back to the analysis and use of the info (and I am skipping around a lot- sorry – just no time to do anything justice other than to mention it for you guys who do delve more into this to have) all these competing interests would also cause pressures on interrogators to get confirmation on the mosaic pieces of info they were obtaining – so the determination of credibility of info an determination of whether a black sites detainee was meetign the high threshold of info to be offered up would have a lot to do with whether he was corroborating and over time you have to think detainees would pick up on this. In a different, GITMO, setting, it appears very likely now that a detainee there was pushed to give some kind of “corroborating” info that Arar was al-Qaeda, and they falsely said that they saw him at al-Qaeda training camp in their questioning process.

      Also, to the extent that any of what was in the original Yoo memo on the *necessary* elements that had to exist before the torture was legally approved made it to the interrogators, you know had a whole ‘nuther set of issues on the intel front. Either the interrogators got (preferrably corroborated) info that their detainees really WERE members of al-Qaeda who were high value operational al-Qaeda memos, or … what had been done to them was not covered by the Yoo memo. He specifically sets that out – that his memo is limited to torturing high value operational al-Qaeda (I think trying to set up a necessity defense although he doesn’t flesh that out)

      SO I’ve mentioned a couple of time the cross corroboration (2/3 of which we now know was false, and perhaps all of it was false) of al-libi, al-Faruq and Zubaydah on the “high up al-Qaeda” front. Tell the interrogators who have already been torturing for a couple of months that what they need for the torture to be legal is for the victims to be high up al-Qaeda and voila.

      The interrogators now have a lot of motivations separate from getting real intel as well. YOu have the need to hit the qualfication points in the AUg memo to make what you have done legal, you have the need of the knuckledraggers to prove how good they are to the other interrogators, you have the need of everyone to get something “actionable’ bc the torture mechanism is triggered whenever you fail to get that and because one of the legal justificiations for you to have been able to torture to start with was the fact that your torture victim did have the operational info to give – so if you didn’t get it, you fail on your own protection as well. Then you were supposed to be helping out on the mosaic front as well, and to top it all off, you had the problem of a detainee who might be talking later to others about what you have done, and what needs to happen there to make sure you are covered.

      Credible intel as a primary or even significant motivator? You tell me.

  20. Mary says:

    And from Mad Dog, upthread in the Rove working thread, a NYT article says

    Dr. Mitchell suggested that interrogations required “a comparable level of fear and brutality to flying planes into buildings

      • Mary says:

        That’s a state secret bmaz.

        One thing we do know, though, bc Yoo and Bradbury and Obama and Holder have now told us so – it’s not something that would cause more than fleeting and passing mental disturbance and definitely no long term issues.

        And if we don’t know that, then what we don’t know should probably be a state secret too.

      • R.H. Green says:

        “a comparable level of fear and brutality to flying planes into buildings”.
        Indeed, how to gauge such comparbilty, and then bring it to bear in interrogations?

        I’m grateful to Maddog for the link to that article, and after having read it, I think I see a pattern that addresses some of the extant breadcrumbs as well as what’s been bothering me about the “learned helplessness” model for interrogations. First , there is the grammar and syntax of the above quote. It would seem that a clear articulation of an applied scientifically-based program strategy would require that it be stated as: “interrogations require an application of fear and brutality comparable to that achieved by flying planes into buildings” (provided one believes such). Stated this way it is easier to then ask whether interrogations do require to be so, and why; it also lends itself to a further articulation of just how that is to be achieved. Scientists just don’t talk the way Dr. Mitchell did in that quote; this seemes more the jargon of a salesman, talking to customers (at what he percieves to be their level of comprehension). Second, I’ve come to think of bullies as people that want to hurt somebody and are looking for excuses to do so. So when I see someone citing a need to induce fear and apply brutality to accomplish some goal, my antennae react.

        But most importantly, info in the Shane article indicates to me that a connection to Seligman and the learned helplessness theory is just name-dropping hyperbole. I suspect Mitchell invoked this highly regarded research as windowdressing in applying for a contract. If I’m right about this, there was no serious effort to apply Seligman’s theory to the intelligence-gathering effort; rather this was just sales talk to con those who might object and those who needed some intellectual cover for their mindless desire to get brutal. In this one cannot leave out the contextual pressure being applied by Mr. Addington, who was apparantly fond of asserting that “if another attack occurs, there will be blood on your hands, if you don’t act”. As Mary has pointed out, the information we have do not show a pattern of the application of such a theory. In fact one can make out a trend to exploring what might work, as if one were searching for a theory or, base of understanding for how to proceed, but instead of following where the data lead, always seeming to gravitate toward the application of brutality, as if motivated by some desperate belief in its efficacy. That is: if you hurt someone long enough, thoroughly enough, they’ll come to heel. The only connection I can see with “learned helplessness” is the belief that:”enough hurt makes people helpless, then you got’em”. Question is: what is it then that you got? I don’t think this was thought thru before being explored. FWIW.

  21. ondelette says:

    I had actually put this up on the Cocktailhag blog a day or two ago, for what it’s worth, I think it will be much closer to the actual “following orders” defense that will be used. I preface this by saying that I don’t know if the method I’m citing is a CIA practice or just a military practice, but here goes.

    From the testimony and interviews of the Abu Ghraib soldiers and those around them, esp. Errol Morris’ interviews with Sabrina Harman and others, a picture emerges for the method for disobeying an unlawful order under the UCMJ. The soldier who believes the order to be unlawful is supposed to submit the issue up the chain of command. That being done, the chain then advises as to whether or not the order is genuinely unlawful leaving the soldier to make the decision with advice. If that is also the system at the CIA, then agents who operated entirely within the guidelines of the Yoo/Bybee and Bradbury memoes will say that they contested the orders because they were aware that an unlawful order to torture must be disobeyed, and then they were informed that the orders had been looked at by experts in international and national law, and they were in fact lawful.

    At which point, the CIA officer will plead that they did due diligence to find out whether they should disobey orders, and found out that what they were being asked to do was (surprisingly) within bounds. At which point they carried it out to the letter of the order, well aware that any transgression or enlargement of the methods might cross the line they had attempted not to cross.

    Keep in mind that some of the techniques, used singly and in limited fashion, have actually been ruled in other courts to be CIDT not amounting to torture, and that there was a belief that CIDT done overseas “didn’t count” for various reasons (spec. that the amendments that the U.S. said implemented the prohibition were not applicable to someone without “significant U.S. presence”).

    I actually believe that such a case needs to be prosecuted (which means going further with prosecutions than Eric Holder wants to go) so that flaws in the U.S. implementation of the CAT can be exposed, and so that the entire societal permission set that underlies having descended into torture can be exposed and eradicated. I don’t know if that will happen, however.

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