How John Yoo Negated the Mental Suffering of Death Threats in the Bybee Two Memo

It’s time to read the Bybee Two memo again.

Since the OPR Report came out, we’ve learned the following (some of it was already out there, but I, at least, hadn’t noticed it):

  • After his 63rd interrogation session, Abu Zubaydah experienced what his torturers call “hard dislocation”
  • An “issue arose” during the interrogation of Abu Zubaydah that two CIA lawyers discussed via email on July 10, 2002
  • In the days following CIA lawyers’ discussion of that issue, Criminal Division Chief Michael Chertoff got his own briefing on the torture memo (July 11), followed the next day by a meeting with Alberto Gonzales and probably David Addington (July 12), followed the next day by a larger briefing including Gonzales, Chertoff, John Rizzo and FBI Chief of Staff Daniel Levin that covered both the planned torture techniques and the torture memo (July 13)
  • After Chertoff told CIA at that July 13 meeting that he would not issue an advance declination of prosecution for torture, Rizzo asked for and received a memo laying out “the elements of the torture statute;” the July 13 memo focused closely on the definition of intent to cause mental suffering; Yoo’s supervisors John Ashcroft and Jay Bybee claim to be unaware of the memo
  • In his cable to AZ’s torture team written after both Bybee Memos were completed, Counterterrorism Center lawyer Jonathan Fredman relied on the language on intent from the July 13 memo, not the Bybee One memo
  • Also after the meeting at which Chertoff refused an advance declination, David Addington appears to have directed John Yoo to include several affirmative defenses in the Bybee One memo
  • The next draft of the memo–dated July 23 and for the first time addressed to Alberto Gonzales–included the affirmative defenses Addington had asked for as well as language on intent to cause mental harm adopted from the July 13 memo
  • In the days following that draft, several things happened to change the approach to torture authorization
  • CIA removed mock burial on its list of torture techniques because approving it would hold up the overall memo
  • CIA asked for a separate letter addressing specific techniques–what would become the Bybee Two memo
  • As part of several packets of information they received from CIA on the long term mental effects of torture, Yoo and Jennifer Koester almost certainly received a draft psychological evaluation noting that AZ had experienced “hard dislocation” after session 63, though we can’t prove that they saw that phrase because the copy of the document they received has been altered before being released in FOIA
  • A large packet of information received on the same day as one of the draft psychological evaluations disappeared from the OLC SCIF

All those details make it fairly clear that the Bybee Two memo was designed to respond to the July 13 memo. But they also help to prove that it failed to do what it was intended to do.

How John Yoo told the CIA to “negate” their specific intent to torture

Yoo’s July 13 memo stated that several things were necessary to prosecute torture for the infliction of mental suffering:

  • The commission of certain kinds of predicate acts, that included but were not limited to the use of procedures designed to profoundly disrupt the senses and/or the threat of imminent death
  • The infliction of prolonged mental harm as a result of those predicate acts
  • The specific intent to inflict the severe mental suffering from those predicate acts

But even if someone had the specific intent to commit those predicate acts and prolonged mental harm resulted, Yoo included an escape hatch. He basically said that if a person had conducted studies and based on those studies had concluded that prolonged mental harm would not result, then he could claim to have been operating with a good faith belief that those actions did not cause prolonged mental harm.

Specific intent can be negated by a showing of good faith. Thus, if an individual undertook any of the predicate acts for severe mental pain or suffering, but did so in the good faith belief that those acts would not cause the prisoner prolonged mental harm, he would not have acted with the specific intent necessary to establish torture. If, for example, efforts were made to determine what long-term impact, if any, specific conduct would have and it was learned that the conduct would not result in prolonged mental harm, any actions undertaken relying on that advice would have be [sic] undertaken in good faith. Due diligence to meet this standard might include such actions as surveying professional literature, consulting with experts, or evidence gained from past experience.

In other words, to “negate” the specific intent to cause prolonged mental harm that constituted torture, you could do a bunch of study and if that study showed no prolonged mental harm had resulted from these actions in the past, you could then claim that you had no idea that those actions might cause prolonged mental harm in the future, and therefore any deliberate actions that ended up causing prolonged mental harm weren’t really torture.


As I’ll show below, the Bybee Two memo was designed to show that CIA had done that kind of study. (Note, this is not an original observation; I’m fairly certain both Jeff Kaye and William Ockham have made this observation in the past.) But, as I’ll show in a follow-up post, it fails in what it was designed to do.

One-third of the Bybee Two memo purports to prove that torture doesn’t cause prolonged mental harm

There are two ways the Bybee Two memo demonstrably responds to the terms laid out in the July 13 memo. First, check out the overall structure. There are three parts to the memo, as follows:

I. A “factual” section laying out the proposed treatment of AZ, including descriptions of each of the 10 torture techniques

II. A section describing the steps CIA has taken “to ascertain what effect, if any, these techniques would have on Zubaydah’s mental health”

III. An analysis of the proposed techniques to show that they would not cause severe physical or mental pain or suffering, followed by a section showing that, therefore, the torturers could not be said to have the specific intent to cause severe pain or suffering

Seeing the single-minded focus in the July 13 memo on mental pain and suffering, and then seeing that middle section in the Bybee Two memo is striking both because the recitation of data in it so neatly responds to Yoo’s gimmick for “negating” any risk of having the specific intent to cause prolonged mental suffering, but also for the seeming lack of concern over physical suffering.

The section simply cites a number of purported experts to claim that both SERE training in general and waterboarding and sleep deprivation in particular have not caused long-term mental suffering (though unlike the evidence on waterboarding, which Yoo cites by name, he simply glosses the studies on sleep deprivation, probably because actually looking at studies would have shown that sleep deprivation does cause long-term mental harm). And then the section regurgitates a lot of Abu Zubaydah’s psychological assessment in order to claim him mentally fit to be tortured.

There’s no attempt to cite studies showing that waterboarding and sleep deprivation are physically safe at all. And there’s almost no attention to the question of whether AZ is physical fit to be tortured; the memo does state repeatedly that CIA has said they won’t do anything to exacerbate the wound he suffered during capture, but it describes neither that wound nor his long-standing head injury (at least not in the unredacted sections).

In other words, they seemed certain that the torture techniques they purportedly hadn’t used yet were physically safe, yet very concerned with showing that they had considered whether they were psychologically safe.

Yoo’s efforts to pretend that mock burial, sleep deprivation, and waterboarding don’t amount to intent to cause mental suffering

But it’s not enough for Yoo to simply cite the purportedly expert data showing that sleep deprivation and waterboarding don’t cause long-term mental suffering. He then reviews each of the techniques and for each finds a way to claim that they don’t cause severe physical or mental pain or suffering. His efforts to do so with small box confinement, sleep deprivation, and waterboarding are particularly strained.

Mock burial

Yoo’s challenges start with cramped confinement, given that we now know 1) CIA had threatened AZ with “mock burial” back in May, 2) CIA had asked for mock burial to be approved until just a few days before this memo was started, and 3) both AZ and others involved referred to the small box as a “coffin.”

Not surprisingly, Yoo makes no mention of that “coffin” detail when he dismisses, with absolutely no analysis, the possibility that cramped confinement could be considered a threat of imminent death.

As with the other techniques discussed so far, cramped confinement is not a threat of imminent death.

Nor does he explain, later, why the threat of using the boxes might be particularly effective at inducing fear (remember that according to AZ, his torturers did keep the small box in sight as an implicit reminder of “what [his] interrogators were capable of”).

While additional time spent in the boxes may be threatened, their use is not accompanied by any express threats of severe physical pain or suffering.

Note, in particular, that Yoo here only considers the threat of using these boxes that look like coffins in terms of any physical suffering they might cause.

But then he inexplicably shifts his focus when discussing–and introducing an apparent contradiction–the limits on how long you could be put into the small box.

With respect to the small confinement box, you have informed us that he would spend at most two hours in this box. You have informed us that your purpose in using these boxes is not to interfere with his senses or his personality, but to cause him physical discomfort that will encourage him to disclose critical information. Moreover, your imposition of time limitations on the use of either of the boxes also indicates that the use of these boxes is not designed or calculated to disrupt profoundly the senses or personality. For the larger box, in which he can both stand and sit, he may be placed in this box for up to eighteen hours at a time, while you have informed us that he will never spend more than an hour at a time in the smaller box. These time limits further ensure that no profound disruption of the sense or personality, were it even possible, would result. As such, the use of the confinement boxes does not constitute a procedure calculated to disrupt profoundly the senses or personality. [my emphasis]

What’s particularly interesting about this passage is that Yoo uses time limits to dismiss any possibility that the boxes would be used to profoundly disrupt the senses. But it would seem the time limits placed on use of the small box–so long as you don’t admit that the box looked like a coffin–would only serve to limit physical suffering, because of the increased physical pain of being in what was in fact a fetal position, as compared to the fuller range of movement permitted by the large box. (Never mind that none of the stress positions came with time limits to them!) Yet Yoo uses the time limits to prove the boxes don’t cause sensual deprivation, not physical suffering. The small box shouldn’t cause any more dislocation of the senses than the large box. Yoo’s focus suggests the primary reason why these time limits exist is because they do carry the risk of profound disruption of the senses, a risk heightened by the fact that the small box looks like a coffin.

Sleep deprivation

Then there’s sleep deprivation, which Yoo had already admitted can cause hallucinations. Yoo attempts to dismiss this risk–and therefore the risk that it would satisfy the predicate of profoundly disrupting the senses–by claiming that CIA has informed him that they won’t use sleep deprivation for that long.

Nor could sleep deprivation constitute a procedure calculated to disrupt profoundly the sense, so long as sleep deprivation (as you have informed us is your intent) is used for limited periods, before hallucinations or other profound disruptions of the sense would occur.


As we explained above, a disruption within the meanings of the statute is an extreme one, substantially interfering with an individual’s cognitive abilities, for example, inducing hallucinations, or driving him to engage in uncharacteristic self-destructive behavior.

But note very carefully what Yoo has already said about the “limited periods” for which CIA will (again, purportedly in the future) use sleep deprivation.

You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.

Eleven days, as it happens, is the top limit in the studies Yoo cited used to show that sleep deprivation caused no long-term mental harm, and in that case, the study said only that “no psychosis or permanent brain damaged [sic] occurred.” I’ll have a lot more to say on this point in my next post, because Yoo’s claims about sleep deprivation are where this entire scheme falls apart most spectacularly. But even from what Yoo presents internally in his memo, it makes no sense. Yoo has told us the limit anyone can stand is 11 days, and then rewards the CIA for adopting this “limit” by judging that because of that limit, sleep deprivation can’t amount to the kind of profound disruption of the senses that amounts to torture.


Then, finally, comes Yoo’s biggest challenge, finding a way to claim that the threat of death associated with waterboarding does not amount to the intentional infliction of prolonged mental suffering and therefore torture. Yoo admits right off that waterboarding is a threat of imminent death.

We find that the use of the waterboard constitutes a threat of imminent death. As you have explained the waterboard procedure to us, it creates in the subject the uncontrollable physiological sensation that the subject is drowning.


From the vantage point of any reasonable person undergoing this procedure in such circumstances, he would feel as if he is drowning at the very moment of the procedure due to the uncontrollable physiological sensation he is experiencing. Thus, this procedure cannot be viewed as too uncertain to satisfy the imminence requirement. Accordingly, it constitutes a threat of imminent death and fulfills the predicate act requirement under the statute.

This is where the July 13 memo becomes so important to the project. That’s because, as I noted before, the July 13 memo states unreservedly that torture requires both the commission of one of the predicate acts (in this case, threatening imminent death) and infliction of prolonged mental harm. The Bybee One memo admitted that others might think committing one of the predicate acts, by itself, was enough to constitute torture (though Yoo ultimately dismissed that concern).

More importantly, the July 13 memo has offered the gimmick by which someone can refer to a bunch of studies to “negate” any intent to cause prolonged mental harm. And, having fulfilled the first part of that gimmick by laying out studies that find no prolonged mental harm from waterboarding, Yoo now invokes that gimmick repeatedly.

Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard.


Based on the information you have provided to us, indicating that no evidence exists that this course of conduct produces any prolonged mental harm, we conclude that a course of conduct using these procedures and culminating in the waterboard would not violate Section 2340A.


Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it. Good faith may be established by, among other things, the reliance on the advice of experts.


Prolonged mental harm is substantial mental harm of sustained duration, e.g., harm lasting months or even years after the acts were inflicting upon the prisoner. As we indicated above, a good faith belief can negate this element. Accordingly, if an individual conducting the interrogation has a good faith belief that the procedures he will apply, separately or together, would not result in prolonged mental harm, that individual lacks the requisite specific intent. This conclusion concerning specific intent is further bolstered by the due diligence that has been conducted concerning the effects of these interrogation procedures.


Because you have conducted the due diligence to determine that these procedures, either alone or in combination, do not produce prolonged mental harm, we believe that you do not meet the specific intent necessary to violate Section 2340A.


Reliance on this information about Zubaydah and about the effect of the use of these techniques more generally demonstrates the presence of a good faith belief that no prolonged mental harm will result from using these methods in the interrogation of Zubdayah. Moreover, we think that this represents not only an honest belief but also a reasonable belief based on the information that you have supplied to us. Thus, we believe that the specific intent to inflict prolonged mental [sic] is not present, and consequently, there is no specific intent to inflict prolonged mental pain or suffering. Accordingly, we conclude that on the facts in this case the use of these methods separately or a course of conduct would not violate Section 2340A.

In other words, after having told CIA on July 13 that if they can come up with some studies showing that waterboarding (and sleep deprivation) don’t cause prolonged mental harm, then they can use them as proof that they had no intent to cause AZ prolonged mental harm. Yoo basically says, “you’ve done what I told you to and therefore I judge that you don’t intend to torture Abu Zubaydah.” Very good job, CIA, Yoo seems to be saying, in reward for doing your homework I now give you permission to torture.

53 replies
  1. bobschacht says:

    Thanks, EW–
    This diary is not an easy read, but I really hit a wall with this sentence:

    Yet Yoo uses the time limits to prove the boxes don’t cause sensual deprivation, not physical suffering, when the small box shouldn’t cause any more dislocation of the senses than the large box.

    I can handle a double negative most of the time, but a triple negative??? Help!!!

    Bob in AZ

    • emptywheel says:

      Sorry, I’ve been reworking that but I don’t know if it works yet.

      The logic is this.

      You would think that the difference in time limits between the large and small box stems from how much more physically taxing the small box is, because rather than being able to stand and sit, you’re in the fetal position and can’t move.

      But when Yoo discusses time limits, he uses them to dismiss any risk of dislocation of the senses–of sensory deprivation. That doesn’t make any sense if there is no additional problem with the small box, because both the small and the large box would shut out noise and sound in the same way, so there should be no difference in the time limits. So there must be an additional reason for the time limits. And I can imagine if you’re in a coffin rather than a box with a pail to pee in and room to move around, you’d go crazy thinking you’re never going to get out a lot quicker.

      • Jeff Kaye says:

        Yoo, the rest of them, are lying about the cramped confinement. It is meant to produce sensory deprivation. There is tons of literature on the terrible effects even a few hours of sensory deprivation can produce. These effects are amplified by pain and fear. See even this small piece of a lit review on the subject which comes from my presentation at the 2007 APA convention.

        Since almost everything OLC/CIA say is a lie, it would take a book to totally document every misstatement in these memos.

        • earlofhuntingdon says:

          I would add that the totality of his imprisonment constituted the imminent threat of death: his jailers would have made that clear if his fears and his rational expectations had not already told him so. They did, after all, rob him of his sanity, at least of any hope of regaining it.

        • PJEvans says:

          If you’re stuck in a box where you can’t unfold, after a while – and it doesn’t have to be hours – you’ll be in pain just from not moving. Not to mention the possibility of blood clots forming – those can kill, slowly (like a week or two) or quickly, and they’re not at all pleasant.

          • Jeff Kaye says:

            Yes, I didn’t mean to underplay the deleterious effects of the cramped confinement per se, I only wanted to speak to their contention that it would not interfere with his senses or personality.

            • PJEvans says:

              After an hour, I’d be ready to tell them whatever they wanted to hear, just so I could get out of the @#$%^&*( box.

              • phred says:

                I’d last 10 seconds. That’s how long I made it in an NMR machine. I wonder if AZ was claustrophic. If so, I can’t imagine the degree of panic he would experience after 5 minutes, much less an hour.

  2. phred says:

    Thanks for this post EW and for all of the extraordinary work you have been doing.

    I noticed the emphasis Yoo places on the the sage advice of experts:

    Good faith may be established by, among other things, the reliance on the advice of experts.

    Clearly, he expects the word of Mitchell and Jessen to suffice for assurance that no long term harm will result. This is his ace-in-the-hole loophole, that one that will save them when all the others fail. And it is dishonest in the extreme, since it is the experts themselves who are perpetrating the torture.

    Loopholes within loopholes. And yet no one in DOJ can find a criminal act to charge. Maybe we need to send them some reading glasses.

    • manys says:

      “Experts” is definitely a low bar, and the thing that kept popping up in my mind as I read this was Yoo’s use of some random medical (insurance, maybe?) paper for his definitions of pain and suffering. If the standard is mere experts, then you can claim any old authority and the argument switches from being about torture’s legality to whether some reference is credible enough.

      • phred says:

        Exactly. “Expert” is very much in the eye of the beholder. So the best they can hope for is a “he said, she said” spat should a trial ever come, hoping that the jury will buy whatever rubbish Yoo and his financiers pay their personal expert to say.

          • phred says:

            Fair enough, but little of what I have seen of Yoo’s work strikes me as reasonable under (over, or beside) the law.

            The whole expert thing seemed to me to be grasping at straws. It also sounds like he is trying to rewrite Nuremburg history by trying to line up a “because so-so and said so” defense. Not quite the same as “just following orders”, but it is of the same kind.

        • Rayne says:

          They cannot be experts when they 1) can’t assure an outcome, 2) don’t have a documented process, and 3) were literally experimenting along the way to some unspecified result.

          Rather like being an expert at throwing spaghetti at the wall to see if it sticks — they just kept throwing stuff at AZ, and the legal team kept throwing legal stuff at it, too.

          Reliance on experts my ass; this is first semester tort law crap that even a freshly graduated high schooler with a few weeks of law school should be able to rip apart. I can’t wait to see what Jeff Kaye makes of this argument.

  3. Garrett says:

    an honest belief need not be reasonable

    It is just so baldfaced in admitting the gimmick. bmaz stresses that this stuff would never pass a jury. They had an awareness it wouldn’t pass prosecutors, either, in later administrations.

    I guess they felt they needed something, anything, however dishonest and unreasonable, put on paper anytime someone objected?

  4. greenharper says:

    Well, this time I get to a post in time to say thanks for all the great work, EW and Bmaz and all the others whose close readings & comments are gradually elucidating this appalling chapter of U.S. history. If the Medal of Freedom were worth anything any more, you’d deserve it.

  5. earlofhuntingdon says:

    Ironic, isn’t it, that the Yoo-OVP-CIA legal advice process demonstrates the dishonesty that negates Yoo’s proffered legal “analysis”.

  6. Jeff Kaye says:

    In other words, after having told CIA on July 13 that if they can come up with some studies showing that waterboarding (and sleep deprivation) don’t cause prolonged mental harm, then they can use them as proof that they had no intent to cause AZ prolonged mental harm. Yoo basically says, “you’ve done what I told you to and therefore I judge that you don’t intend to torture Abu Zubaydah.” Very good job, CIA, Yoo seems to be saying, in reward for doing your homework I now give you permission to torture.

    Ah… BINGO!

    Yoo acted as the adviser to the torturers, giving them a road-map by which they could claim they had done what they needed to provide “good faith” protection for their actions. Of course, there was no real way for CIA to do this without monkeying with the results of their “review”, by lies of both omission and commission.

    I look forward to your further analysis, EW. But let me make a few comments of my own.

    1) The review of literature by experts was minimal. Furthermore, it left out by what could only be deliberation, numerous scientific studies over the years of the effects of “uncontrollable stress” produced by mock torture upon SERE school trainees. These studies were overseen, in large part, by CIA psychiatrist Charles A. Morgan III. The latter is no obscure figure, but was himself placed upon the experts’ board on interrogation by the Intelligence Science Board for their review of interrogation standards, Educing Information (where his affiliation is listed with the Intelligence Technology Innovation Center (ITIC). According to Intelligence Online, ITIC is “a research organization under the CIA’s authority,” which “answers directly to the CIA’s Science and Technology directorate.”

    These studies on the effects of SERE techniques were undertaken under the auspices of not just CIA, but also the Army’s Ft. Detrick command, and the Navy’s Aerospace Naval Research Laboratory in Pensacola, FL, in addition to the Naval Health Research Center in San Diego (see TAYLOR MK, SAUSEN KP, MUJICA-PARODI LR, POTTERAT EG, YANAGI MA, KIM H. Neurophysiologic methods to measure stress during survival, evasion, resistance, and escape training. Aviat Space Environ Med 2007; 78(5, Suppl.):B224–30.).

    In other words, there was ample evidence of the deleterious effects of the SERE/EIT techniques, including by CIA and military researchers. IMO, this has been the biggest omission of evidence typically noted in any of these discussions.

    2) Of late, I’ve noted the controversies within JPRA itself over the safety of the use of waterboarding in its training. This led JPRA to eliminate waterboarding at any of its SERE schools, with the sole hold-out at the So. Calif. Navy SERE school, who finally capitulated to demands it cease waterboarding training in 2008. The reason? It induced “learned helplessness”. The latter is an academic behavioral condition described in research literature, but it has definite psychological/psychiatric and physiological correlates which are harmful. It has been used, for instance, as a model for the production of major depression and PTSD. Dr. Martin Seligman, the originator of the term, and its primary researcher, who has been associated with both CIA and SERE training (he says only as a lecturer), in a book written with two co-authors in 1993 spoke to the situation re physiological changes under “learned helplessness”:

    The psychological processes in learned helplessness theory must be expressed in terms of the chemical and physiological processes of the brain…. The preferred level of description and explanation depends on the use to which one puts them. A complete understanding of any behavioral phenomena requires that both psychological and physiological mechanisms be understood.

    Feelings of control by an organism, or subjection to situations outside one’s control has “pervasive biological consequences,” including effects upon multiple neurotranmitters, including norepinephrine, GABA, profound sympathetic nervous system hyperarousal and hypothalamus-pituitary-adrenal activation.

    In any case, as I’ve documented, the SERE schools were measuring levels of cortisol and found the waterboarding unsafe and got rid of it. Cheney, Yoo and others still tout the supposed fact, really a lie, that the U.S. waterboards its own soldiers in training. Bradbury was lied to by the CIA’s OMS per his footnote 52 in his “Certain Techniques” May 10 2005 memo, i.e., that SERE officials found problems with waterboarding, but CIA did not. I know I should have written this up more fully, and promise to soon, as I will have some time freed up in the very near future for just this kind of work.

    Even more, claims have been made about the long-term effects of waterboarding that are not scientific at all, not authoritative, and at best anecdotal. It seems to be possible, as well, that a significant government cover-up exists on the harmful effects of SERE training upon U.S. forces. But that must remain a story for further study and to reported another day.

    3) Finally, there is the psych eval itself. The eval, upon which the OLC relied, in whatever version it proclaimed itself, assured its readers that “Overall, subject’s background as revealed by self-report (including diaries and interview) does not indicate that he has a history of mood disturbance or other psychiatric pathology”. Except now we know that the government concedes that his diaries were written in “multiple voices”, and there is plenty of other testimony of AZ’s poor physical and psychiatric condition. Plus we also know that the government has fought tooth and nail over access to AZ’s medical records, will not allow an independent medical assessment, and will not allow public viewing of the translated portions of the diaries extant.

    Everything the government has done in this affair is obstructionist, lying, and in bad faith.

    I hope I have not wasted space here on this thread, and have added something material to the discussion.

    • emptywheel says:

      Well, the govt has not, as far as I can tell, ceded that his diary is in multiple voices. They’ve left AZ’s lawyers to prove that themselves. They have only ceded that he had cognitive impairment from the shrapnel injury.

      That said, this is really helpful.

      • Jeff Kaye says:

        Yes, I am perhaps jumping to conclusions, but to me, they might as well admit it.

        Petitioner’s request for evidence that the diary was written in “multiple voices” (Request No. 56) is equally puzzling. The best place to look for information about the content of [redacted] diaries or any aspects of the writing style [redacted] used in composing them is in the diaries themselves. Petitioner and his counsel are already fully able to evaluate and make arguments based on the content and style of the diaries, and in any event, evidence that the [redacted] wrote the diary in “multiple voices” would not necessarily suggest that the diary was not an accurate account of events.

        Why would the government make the final assertion (bolded here) if there did not exist evidence of such “multiple voices” presentation? To me, that, put together with the statement of FBI agents and others leads me to accept the contention. However, I am seeking further clarifications and corroborations, since I am unlikely to be allowed to look at the diaries myself (in translated form). In fact, so far as I know, no psychiatric or psychological professional has yet examined these diaries.

        • emptywheel says:

          That fits the form and the limits they’re using there, though. THey simply haven’t made any assertion that it was written in multiple voices, and they’re responding to the description from AZ’s lawyers, so this is not evidence that they’ve admitted to it.

          And the comment that it wouldn’t mean the diary was inaccurate is necessary–particularly since they probably ARE sitting on evidence (Coleman’s comments) that someone did think it was written in multiple voices, because otherwise that would exonerate AZ and have to be turned over.

          • Jeff Kaye says:

            THey simply haven’t made any assertion that it was written in multiple voices, and they’re responding to the description from AZ’s lawyers, so this is not evidence that they’ve admitted to it.

            You are right, and I will stop making such assertions, as it doesn’t help one’s cause to do so without full facts. I’ve often given this advice to others, and I don’t mind hearing same from you. This prevents both errors and accusations of not being serious. I appreciate keeping on me about this, and kindly.

            • emptywheel says:

              The factual return is tricky that way, bc they have clearly not stated what they know or believe in it, they have stated what they know they can support in it. So even while they may have records that indicate someone–Coleman-thinks there are several voices in the diary, they’ve crafted the factual return so as to be able to avoid admitting that.

              • Jeff Kaye says:

                I understand. I continue to keep learning, and the intricacies of a “factual return” is yet another think I must now consider.

                Well, I am going to pursue this further. In part, my interest has been tweaked by my own recent study into the question of dissociation. While I have clinical experience with patients, I have not tried to put it together with the long psychological literature on the subject, and the evidence of experiments associated with induced dissociation by the CIA in its “mind control” era. Colin Ross has pursued this avenue, and he has gotten the reputation as a crank. But I sat down and read him, and he was quite compelling and non-dogmatic on the issue of inducing DID. And then again, there are those government documents and other published claims as to the success of producing multiple and controllable identities, I don’t think even as somewhat of a historian of psychology I can just ignore it.

                As for AZ, it all may result in very little, but I think it’s worth pursuing a bit farther.

                  • Jeff Kaye says:

                    No, but you can be sure I will be studying it. Very helpful for this psychologist-blogger-would-be-investigative-journalist. I find it more amenable to get lost in psych lit on “learned helplessness”, sensory deprivation, and all that, than in understanding legal matters, but I’ll do my best.

              • JasonLeopold says:

                That actually brings up another point, the factual return, which I have been obsessing about for the past two days. I used the word “recanted” and “officially admits” re: AZ’s involvement in 9/11 and in my original story on the factual return to describe the govt’s position that you were kind enough to highlight and I don’t think that characterization is accurate. I’m thinking I should have used the word “contend.” I believe I made it clear that it was the habeas proceeding. So I feel compelled to apologize to you (and others) if I oversold the story regarding the govt’s position.

          • JasonLeopold says:

            Yes. It looks like AZ’s attorneys are using Coleman’s interview with the WaPo a while back and what Jane Mayer wrote in The Dark Side as their only evidence to suggest it was written in multiple voices. Here’s a link I made to a Jan. 4, 2009 filing the attorneys made re: diaries if it’s helpful to you or Jeff down the road.

      • JasonLeopold says:

        You’re right. The govt has not conceded that, but his attorneys are trying to get the govt to either admit that or turn over evidence that it was in fact written in multiple voices. From page 26 of the govt’s opposition to discovery:

        Petitioner’s request for evidence that the diary was written in “multiple voices” (Request No. 56) is equally puzzling. The best place to look for information about the content of REDACTED diaries or any aspects of the writing style REDACTED used in composing them is in the diaries themselves. Petitioner and his counsel are already fully able to evaluate and make
        arguments based on the content and style of the diaries, and in any event, evidence that the REDACTED wrote the diary in “multiple voices” would not necessarily suggest that the diary was not an accurate account of events.

    • Rayne says:

      Very helpful, very, to have someone point out in brief how much they omitted from their review.

      The whole situation strikes me as farcical and cartoonish, like foxes guarding a hen house, being asked to provide some evidence that foxes don’t eat chickens so they can continue to do what most foxes by their nature do most of the time.

  7. Jeff Kaye says:

    In one of the habeas filings I’ve seen (no link, but in 2009), AZ’s attorneys complain they can’t get an expert to help them separate out their client’s “confabulations” from genuine memories, because the government’s Protective Order won’t allow them.

    More obstructionism.

    “Confabulations” can be produced in individuals with brain damage. They could arise from other causes as well.

  8. klynn says:

    From Mark Danner’s work regarding the ICRC report:

    I (AZ) was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.

    All evidence from the ICRC report suggests that Abu Zubaydah’s informant was telling him the truth: he was the first, and, as such, a guinea pig.

    (my bold)

    It would be great to figure out who this informant might be…

    • 1boringoldman says:

      While I think it’s becoming increasingly clear that Abu Zubaydah really was a guinea pig, he wasn’t the first. Our soldiers who went through the SERE training came before him, as ginea pigs. Jeff Kaye is reporting a number of studies on the SERE trainees – stress hormones, HRV, etc – being measured before Abu Zubaydah ever came along. As he points out:

      “Of course, these “adjustments” are meant to help in operational situations for U.S. “warfighters,” but they could just as easily be used to monitor the effectiveness of torture or interrogation approaches in general. While I do not have any direct evidence it is so used, the migration of such techniques to the torturer’s chamber is only a matter of time, if in fact it has not already occurred.”

      I find it hard to imagine that the military as I knew it wouldn’t make the connection [training/interrogation] from the get-go. The “reverse engineering” of the SERE techniques feels like a ruse to me. That “engineering” was surely in place long before Abu Zubaydah came along – at least in the minds of its trainers.

      I have a friend who was put in one of those confinement boxes in his training as a helicopter pilot during the Viet Nam War. It was so intolerable and disruptive to him that he found a dramatic way to exit the Military in very short order. I was impressed from the subsequent course of his life that it had an enduring effect – PTSD [pPutting “SERE PTSD” into Google brings up a lot of conflicting reports – hard to sort out a first glance].

            • bmaz says:

              I am more optimistic. Keep in mind there is reason for the delay in that Mohamed’s lawyers filed supplemental authorities on February 18 in light of the British Court findings and it is short, but pretty sweet on the real point against unbridled assertion of state secrets. So, the silence of the court does not, by itself, cause consternation particularly. Also, the three judge panel that unanimously ruled for Mohamed in the original panel decision all are members of the eleven judge en banc panel and they are all very tenured, established and respected members of the 9th Circuit. There are a couple on there I really don’t like, for instance Rawlinson, but I still see a positive result coming from the decision.

      • klynn says:

        I find it hard to imagine that the military as I knew it wouldn’t make the connection [training/interrogation] from the get-go. The “reverse engineering” of the SERE techniques feels like a ruse to me. That “engineering” was surely in place long before Abu Zubaydah came along – at least in the minds of its trainers.

        I agree with you that Jeff has done a fantastic job with his reporting on current and historical practices (Thank you Jeff) and that there was probably much that was in place before AZ.

        Yet, there are strong hints that he was a guinea pig, which triggers many questions about the informant mentioned in the ICRC report.

        I cannot begin to determine what affect such news had on AZ. Just being told he was the first and that no rules applied, would in itself, create some level of threat to his life each time they came to interrogate him. I’ll let you and Jeff comment on what that information alone might do to an individual over time.

        I still would like to find out who the informant happened to be and assess their mental state. But I am not the professional in these threads.

        (By the way great graphic posted earlier and super blog you have. Thank you.)

  9. Jeff Kaye says:

    Since there are a number of psychiatrists and other medical professionals turning up on these threads, I thought I’d go ahead and make some quotes from a military article, approved for public distribution, the article “Neurophysiologic methods to measure stress during survival, evasion, resistance, and escape training.” Aviat Space Environ Med 2007; 78(5, Suppl.):B224–30 — linked in comment 13 above. Remember, these are your tax dollars at work!

    The point here is to put on the record — if a comment can be a sort of record — some of the ways in which the research on SERE torture is being used by the military. The reference to Morgan and associates in the quote refers to research done in 2002 and before. Morgan was on the experts panel for the Intelligence Science Board Educing Information report, and I have linked him definitively to the CIA. (For intance, I have an early draft of the EI report which specifically names his affiliation as CIA.)

    I believe, because other documents which I’ll refer in an upcoming and long-promised article, that monitoring of HRV is a crucial new technology by which government interrogators are fine-tuning the response of individuals to all sorts of “uncontrollable stress” under interrogation. — Note: Bold emphases are added.

    … [Heart Rate Variability] HRV refers to an observable measure of autonomic function that is sensitive to changes in emotional states, stress, and physical exertion. This measure is discussed here, along with a description of its use in our study as well as its possible operational impact.

    HRV refers to the variation in heart rate between successive beats, and is commonly described by the standard deviation of intervals between successive R waves in the cardiac cycle. Short-term variation can be decomposed mathematically into components of the frequency spectrum that estimate autonomic modulation of heart rate. In particular, the high frequency component (0.15–0.5 Hz) is believed to correspond to modulation of the cardiac cycle by vagus nerve stimulation, reflecting rapid transmission of acetylcholine in inhibiting heart cells by directly opening ion channels…. HRV, then, is a noninvasive test of autonomic function which can be dramatically affected by emotional states, stress, and physical exertion (9). As alluded to earlier relative to ASER [Acoustic Startle Eye-Blink Response] technology, HRV should be integrated with other measures of stress reactivity to more fully appreciate the complexity underlying stress reactivity — a step we have taken in our present research….

    Overview of current research strategy: HRV analysis represents another novel research method being applied in SERE research. In the present study, 24-h electrocardiographic recordings are performed prior to SERE training using the Aria Holter monitor (Del Mar Reynolds Medical, Irvine, CA) with a sampling rate of 128 samples per second. The records are then reviewed and edited using the Impresario Holter Analysis system (Del Mar Reynolds Medical, Irvine, CA). In correlational analyses, HRV during a 24-h period is expected to relate to perceived stress, trait anxiety, and trait anger. In prospective analyses, HRV is expected to predict cortisol reactivity, dissociation, and declarative memory during SERE training. [Note from JK: For SERE training, one could read “torture”.]

    Operational impact: This program of research will help to determine whether HRV may be useful as a means to profile individual differences in response to extreme military stress. It appears that HRV could be integrated into augmented cognition platforms and related technologies designed to provide cognitive feedback to an HCI system….

    As ASER and HRV refer to observable measures of biological processes implicated in operational stress, HPA axis reactivity is also observable through noninvasive sampling of stress hormones. Our method for quantifying HPA [Hypothalamus-Pituitary-Adrenal] reactivity to SERE training is discussed in this section, along with a description of its use in our work as well as its future operational impact….

    Excessive cortisol levels resulting from chronic exposure to severe stress (as occurs during SERE training) are also known to degrade recall (14,26,29). Specifically, cortisol evokes suppressing effects on the hippocampus (14) and degrades perceptual processes important not only for encoding information (i.e., tunnel vision) but also for memory of salient information (29). Acute exposure to high cortisol levels results in degraded declarative memory, which is reversible on return to normal levels. By contrast, chronic exposure to elevated levels of cortisol has been shown to damage hippocampal neurons (27-29), and may further suppress normally occurring neurogenesis.

    Unlike the research methods discussed earlier, measurement of cortisol responses and other stress-related hormones is not without precedence in SERE research (17–21). Morgan and associates (19), for instance, collected salivary data from 109 Army SERE students at baseline, during 4 stress exposure time points during SERE training, and at recovery. Cortisol increased significantly during the captivity experience, was greatest after exposure to captivity-related problems, and remained elevated during recovery. These researchers have also studied neuropeptide-Y (NPY)….

    A possible application can be found in “skin patches” currently being researched to monitor bio-chemical responses to operational stress via detection of cortisol, catecholamines, DHEA, NPY, other relevant stress hormones, alarm pheromones, and related chemicals (Table I). Detection of extreme amounts of cortisol via patch technology, for instance, could be fed back to a monitoring system that could then make adjustments….

    Of course, these “adjustments” are meant to help in operational situations for U.S. “warfighters,” but they could just as easily be used to monitor the effectiveness of torture or interrogation approaches in general. While I do not have any direct evidence it is so used, the migration of such techniques to the torturer’s chamber is only a matter of time, if in fact it has not already occurred. If, in fact, some of the “experiments” done on AZ and other was not precisely to fine-tune such techniques.

    • bobschacht says:

      Your long quote and interest in HRV is of interest to me for an entirely different reason: for a long time, I have had HRV episodes of various kinds, and am on medication to moderate variations. In my lexicon, there are two main states: the preferred state is “normal sinus rhythm,” in which I feel normal and functional. The alternative state is any of several cardiac “arrhythmias,” including atrial fibrillation, tachycardia, etc. In this alternative state, I definitely feel out of sorts, and there is no way I could get any sleep in this state, or function normally. But people react differently to these alternate states, and it doesn’t bother some people at all (they don’t even notice.)

      WRT your long quote, the thing that strikes me as most odd is that nowhere in the long quote is there any references to disturbance in the normal sinus rhythm. If this was written by someone educated in cardiology, one would have to conclude that there were no abnormal sinus rhythms, and that HRV referred exclusively to variations in heart rate (duh, you say, that’s what HRV stands for!). But the factors indicated (changes in emotional states, stress, and physical exertion) are, for many people, factors that can disrupt normal sinus rhythm. I notice that your long quote did make a reference to electrocardiographs and holter monitors:

      In the present study, 24-h electrocardiographic recordings are performed prior to SERE training using the Aria Holter monitor (Del Mar Reynolds Medical, Irvine, CA) with a sampling rate of 128 samples per second. The records are then reviewed and edited using the Impresario Holter Analysis system (Del Mar Reynolds Medical, Irvine, CA).

      With these instruments, it is an easy matter to detect arrhythmias by anyone who knows how to read the graphs. It does not make any sense to me to limit these analyses to mere variations in heart rate.

      For example, referring again to my own experience, in the past 4 months my cardiologist and I were experimenting with different heart medications to find out if arrhythmias could be controlled without certain side effects. During this experimental phase, I experienced going in and out of rhythm under a number of different precipitating circumstances (though none as extreme as torture, of course) and a number of different methods of resolution (medication, changes in activity states, stress, emotion, but all rather moderate by comparison with what you are discussing).

      Extrapolating from my own experience, I would guess that monitoring HRV, as significant as it might be, needs to be accompanied by monitoring sinus rhythms, because disruption in sinus rhythms may play an even greater part in perceived stress states than HRV alone. Perhaps the source you are quoting from included such analyses, but you did not quote those parts because you weren’t aware of their significance.

      Bob in AZ

      • Jeff Kaye says:

        Very possible. I certainly didn’t quote the entire article — even if it seemed that way ;-)

        If you look at it (link at comment 13 — the other link, Morgan’s article, also goes into some detail on HRV), you might see something I haven’t. Others have written to me, btw, noting other mentions in other comments, and have had more to say on HRV and various conditions, but I am simply not medically educated enough to elaborate more than I have.

        • bobschacht says:

          I don’t see anything in those articles on cardiac arrhythmia or abnormal sinus rhythms, so I guess those issues just weren’t on their radar screens.

          HRV measurement, however, would certainly pick up tachycardia, which by definition is an abnormally fast heart rate.

          Bob in AZ

  10. burnt says:

    Thanks to my employer I have acccess to an excellent bio-medical library. Mr. Yoo could have quickly discovered this stuff electronically and he had access to this stuff through inter-library loan. Clearly he did not avail himself of this valuable resource.

    I looked for older stuff related to sensory deprivation. Here are two examples:

    The Psychodynamic implications of physiological studies on sensory deprivation. Edited by Leo Madow and Laurence H. Snow.
    Published Springfield, Thomas [1970]
    Note Proceedings of the second annual symposium sponsored by the Dept. of Psychiatry and Neurology of the Woman’s Medical College of Pennsylvania held at the Eastern Pennsylvania Psychiatric Institute, Nov. 11, 1968.

    Title Sensory deprivation: fifteen years of research. Edited by John P. Zubek.
    Published New York, Appleton-Century-Crofts [1969]

    As you might guess the conclusions of this early research indicate sensory deprivation is not such a good thing (we’re not talking isolation tanks here). At the time Yoo was writing his memos there was more than 40 years of research available to him. He ignored it.

    • bmaz says:

      Well, there is another thing. A competent legal opinion writer would never rely solely on the spoon fed “expert” information of the client seeking the permission. It would be malpractice and unethical.

  11. Palli says:

    RE: discussion of “expert” at 2,3,4 late to the game but the twisted nature of our capitalistic society must be mentioned-

    In this culture, expert is determined principally by the price paid for the service. Outside contractors Blackwater are experts because the Pentagon pays them more than they pay military personnel; Mitchell and Jensen are experts because the CIA pays them more than career CIA career employees and way more than research scientists working in colleges, universities and research hospitals designing ethical, verifiable and peer-reviewed scientific studies to advance science.

Comments are closed.