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Secret Memos Undermine Torture Claims
Media Reports Omit Pertinent Facts
By MICHAEL P. TREMOGLIE, The Bulletin
Editor’s Note: This is the second in a two-part series.
The recently declassified memos written by Justice Department lawyers to CIA personnel provide more evidence the Bush administration and the CIA only used harsh interrogation techniques on captured terrorists when no other avenues were available.
From the beginning, administration lawyers scrambled to determine if the techniques the CIA requested to use would violate laws against torture.
An Aug. 1, 2002 memo written by Assistant Attorney General Jay Bybee to CIA Acting General Counsel John Rizzo addressed interrogating Abu Zubaydah. He was a high-ranking al-Qaida official whom the CIA thought had vital information, which could prevent a terrorist attack.
The memo was a written in response to the CIA’s request to use certain techniques — including waterboarding — while interrogating Mr. Zubaydah and its desire to know if these techniques would violate laws against torturing prisoners.
It disproves critics’ claims the CIA and the Bush administration willfully and recklessly engaged in torture without regard to established law or legal procedures.
The memo concluded the proposed techniques would not constitute torture because certain conditions had been met.
The conditions were:
•Mr. Zubaydah had information about terrorist networks in the United States.
•There was “a level of chatter equal to that which preceded the September 11 attacks”
•Mr. Zubaydah was “accustomed to a certain level of treatment and displays no signs of willingness to disclose further information”
The questioning of Mr. Zubaydah had failed to gain the information the team wanted.
• The CIA interrogation team proposed using a series of 10 techniques beginning with an “attention grasp” and ultimately including “waterboarding.” Each technique would be used as needed.
The memo also stated waterboarding would not fit the legal definition of torture because the CIA determined it would not result in prolonged mental harm and that there was no specific intent to inflict severe mental pain and suffering.
A May 10, 2005 memo went even further to define what would constitute torture, and it sought to ensure that safeguards were put in place to avoid meeting the legal definition of torture.
It states on page 55: “We understand that the CIA’s use of all these interrogation techniques is subject to ongoing monitoring by interrogation team members who will direct that techniques be discontinued if there is a deviation from prescribed procedures and medical and psychological personnel from OMS (CIA Office of Medical Services) who direct that any or all techniques be discontinued if in their professional judgment the detainee may otherwise suffer severe physical or mental pain or suffering.”
On the following page, the memo says the interrogations could continue if the interrogation team determined a need existed and if the medical and psychological personnel did not advise against them.
Page 37 of a May 30, 2005 memo from Steven Bradbury, acting assistant attorney general in the Justice Department’s Office of Legal Council, to Mr. Rizzo mentions how two al-Qaida terrorists were interrogated.
This now infamous memo was the source of the headlines the CIA waterboarded Mr. Zubaydah at least 83 times during the August 2002 interrogation and 183 times during the March 2003 interrogation of terrorist mastermind Khalid Sheikh Mohammed.
The memo sets limits for the CIA’s use of waterboarding, which are contrary to the sensational headlines.
For example, it says waterboarding could only be used under narrow circumstances and only when authorized. Waterboarding was allowed for two “sessions” per day up.
“Water may be applied up to six times for 10 seconds or longer (but no more 40 seconds),” the instructions said.
During “a 24-hour period, a detainee may subjected to up to twelve minutes of water application. Additionally, the waterboard may be used on as many as five days during a 30-day approval period.”
But many groups and individuals have expressed outrage and righteous indignation at the use of this interrogation technique in any circumstance.
Fox News Channel’s Shepard Smith is one such individual. During a live broadcast he said America should not torture prisoners. He but did not comment on the memo’s claim that the CIA’s actions did not constitute torture.
Physicians for Human Rights (PHR) has been a vociferous critic of the CIA interrogation techniques and has condemned psychologists for taking part in these interrogations.
PHR spokesman, Jonathan Hutson, said he believed establishing rapport was more effective than torture.
He declined comment when asked what would be the next step if that did not work.
This lack of an alternative by the CIA critics does not surprise constitutional law expert John Eastman, dean of Chapman University Law School in Orange County, Calif.
“Establishing rapport takes months and months,” he said. “Sometimes interrogators do not have months and months to obtain information.”
He said the memos reveal the internal battle within the CIA about interrogation techniques. It also establishes limits for interrogation.
“I think the timeline here is fairly important,” Prof. Eastman said. “The August 2002 memo parses very carefully the treaties against and the statutes that implement them. It described where the line was drawn about what constitutes torture.”
Michael P. Tremoglie can be contacted at mtremoglie@thebulletin.us
The recently declassified memos written by Justice Department lawyers to CIA personnel provide more evidence the Bush administration and the CIA only used harsh interrogation techniques on captured terrorists when no other avenues were available.
From the beginning, administration lawyers scrambled to determine if the techniques the CIA requested to use would violate laws against torture.
An Aug. 1, 2002 memo written by Assistant Attorney General Jay Bybee to CIA Acting General Counsel John Rizzo addressed interrogating Abu Zubaydah. He was a high-ranking al-Qaida official whom the CIA thought had vital information, which could prevent a terrorist attack.
The memo was a written in response to the CIA’s request to use certain techniques — including waterboarding — while interrogating Mr. Zubaydah and its desire to know if these techniques would violate laws against torturing prisoners.
It disproves critics’ claims the CIA and the Bush administration willfully and recklessly engaged in torture without regard to established law or legal procedures.
The memo concluded the proposed techniques would not constitute torture because certain conditions had been met.
The conditions were:
•Mr. Zubaydah had information about terrorist networks in the United States.
•There was “a level of chatter equal to that which preceded the September 11 attacks”
•Mr. Zubaydah was “accustomed to a certain level of treatment and displays no signs of willingness to disclose further information”
The questioning of Mr. Zubaydah had failed to gain the information the team wanted.
• The CIA interrogation team proposed using a series of 10 techniques beginning with an “attention grasp” and ultimately including “waterboarding.” Each technique would be used as needed.
The memo also stated waterboarding would not fit the legal definition of torture because the CIA determined it would not result in prolonged mental harm and that there was no specific intent to inflict severe mental pain and suffering.
A May 10, 2005 memo went even further to define what would constitute torture, and it sought to ensure that safeguards were put in place to avoid meeting the legal definition of torture.
It states on page 55: “We understand that the CIA’s use of all these interrogation techniques is subject to ongoing monitoring by interrogation team members who will direct that techniques be discontinued if there is a deviation from prescribed procedures and medical and psychological personnel from OMS (CIA Office of Medical Services) who direct that any or all techniques be discontinued if in their professional judgment the detainee may otherwise suffer severe physical or mental pain or suffering.”
On the following page, the memo says the interrogations could continue if the interrogation team determined a need existed and if the medical and psychological personnel did not advise against them.
Page 37 of a May 30, 2005 memo from Steven Bradbury, acting assistant attorney general in the Justice Department’s Office of Legal Council, to Mr. Rizzo mentions how two al-Qaida terrorists were interrogated.
This now infamous memo was the source of the headlines the CIA waterboarded Mr. Zubaydah at least 83 times during the August 2002 interrogation and 183 times during the March 2003 interrogation of terrorist mastermind Khalid Sheikh Mohammed.
The memo sets limits for the CIA’s use of waterboarding, which are contrary to the sensational headlines.
For example, it says waterboarding could only be used under narrow circumstances and only when authorized. Waterboarding was allowed for two “sessions” per day up.
“Water may be applied up to six times for 10 seconds or longer (but no more 40 seconds),” the instructions said.
During “a 24-hour period, a detainee may subjected to up to twelve minutes of water application. Additionally, the waterboard may be used on as many as five days during a 30-day approval period.”
But many groups and individuals have expressed outrage and righteous indignation at the use of this interrogation technique in any circumstance.
Fox News Channel’s Shepard Smith is one such individual. During a live broadcast he said America should not torture prisoners. He but did not comment on the memo’s claim that the CIA’s actions did not constitute torture.
Physicians for Human Rights (PHR) has been a vociferous critic of the CIA interrogation techniques and has condemned psychologists for taking part in these interrogations.
PHR spokesman, Jonathan Hutson, said he believed establishing rapport was more effective than torture.
He declined comment when asked what would be the next step if that did not work.
This lack of an alternative by the CIA critics does not surprise constitutional law expert John Eastman, dean of Chapman University Law School in Orange County, Calif.
“Establishing rapport takes months and months,” he said. “Sometimes interrogators do not have months and months to obtain information.”
He said the memos reveal the internal battle within the CIA about interrogation techniques. It also establishes limits for interrogation.
“I think the timeline here is fairly important,” Prof. Eastman said. “The August 2002 memo parses very carefully the treaties against and the statutes that implement them. It described where the line was drawn about what constitutes torture.”
Michael P. Tremoglie can be contacted at mtremoglie@thebulletin.us
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