Balkinization  

Thursday, February 14, 2008

This You Ought to Watch

Marty Lederman

Congressman Nadler asks Steve Bradbury two critical questions: (i) How is it possible that the CIA's waterboarding (which Bradbury insists is not as bad as the traditional technique!) is not designed to result in severe physical and/or mental pain or suffering?;

and

(ii) Is there any theory under which the Executive has a legal right to withhold from the Committee OLC's legal opinions on the legality of the enhanced techniques, so that the Committee can oversee DOJ (and, I would add, so that the Committee has some understanding of how our government is interpreting and implementing Congress's own enacted statutes)?

Bradbury, not surprisingly, does not provide any direct answers to either question.

Comments:

Bradbury actually did a fairly good job correcting Nadler's intentional misrepresentation of waterboarding by using the Spanish Inquisition and Japanese methods as examples. The Spanish and Japanese introduced large amounts of water into the lungs and or the stomach of the person in order to cause substantial bodily injury and physical agony. The CIA introduces no significant amount of water into the person and instead runs water over cellophane or cloth over the mouth for a minute or less to induce a gag reflex.

Seeing that he was being exposed, Nadler cut Bradbury off and complained that Judiciary was not being given clearance to conduct oversight of the CIA program.

Trying to stay polite and not simply tell Nadler that intelligence oversight was none of his grandstanding business, Bradbury noted that overview of classified intelligence was traditionally the purview of the Intelligence Committee.
 

not designed to result in severe physical and/or mental pain or suffering

If waterboarding does not result in severe physical and/or mental pain or suffering, then why does it supposedly "work?" Are we to believe that waterboarding it just mildly annoying, like staring into a bright light, yet somehow this mild annoyance can "break" someone in under a minute? How does that work? The whole theory of torture is that the pain, whether psychological or physical, is unbearable and that is why the person being interrogated will do or say anything to stop the torture.
 

me:

The purpose of interrogation is to break down the subject's mental defenses so he begins to talk.

The CIA Interrogation Manual actually spends time discussing the the infliction of severe pain (the statutory and treaty definition of torture) does not work because the subject can remain in mental control under pain.

In contrast, the CIA's version of waterboarding induces sudden panic which causes the subject to quickly lose mental control.

For example, it took the North Vietnamese days of beatings and dislocating John McCain's shoulders to get him to talk. It took the CIA less than 2 minutes of waterboarding induced panic to get KSM to talk.
 

Bradbury and Nadler should go read the descriptions given of the KSM waterboarding.

Far from there being any limts on depravity, there was acknowledgment that they tortured to the point of breakdown with each person, and were "impressed" that KSM held out the longest. And despite depalma's reference to his direct knowledge of exactly how the CIA waterboarding is done, the reports involving KSM certainly mention time frames in excess of "a minute or less"

In addition, the reports from the Phillipines, which Bradbury tried to tie in as well, and from our own soldiers and their own and recent waterboarding experiences, don't have anything to do with distention of the stomach by water as the tortuous issue. As a matter of fact, reports of distended bellies being jumped on were contradicted for the record, and yet convictions were not really based on the number of inches of distention.

Bradbury is playing the destruction of the tapes for all he can, trying to say his approvals were for something very innocuous. He seems to want to sell the story that what they did was strap someone down and then have a cocker spaniel lick them on the face.

Tripe.

Even Americans who have undergone SERE waterboarding and who knew for a sure and certain fact that they would not actually be drowned, report on the torture of the drowning process involved.

It would have been interesting to have Nadler ask him whether or not he viewed the tapes and how they complied with his later issued 2005 opinion. Or if their desctruction was partly due to the fact that they did NOT comply with the Dog Innocently Licking Face (code name DILF) procedure he says he authorized/advocated/solicited.

And isn't it amazing, as the Bush revlations and failures to acknowledge always are, that anything exculpatory to the Executive Branch thugs in any way are freely offered up (like the Libby selective leaking) while only those things inculpatory are kept secret.

Kind of the reverse of the rules they had for the 11 yo they sent to GITMO.
 

The idea that there could ever be any such thing as non-damaging torture or that there could possibly be a less-damaging method of waterboarding is simply insulting to any minimally intelligent human being.
Waterboarding is torture, period.
Torture is wrong and is ALWAYS the "thin edge" and is ALWAYS the beginning to the "slippery slope" that leads to barbarism.
 

mary:

KSM reportedly lasted a minute and a half rather than a minute. I stand corrected.
 

garth:

Once again, Nance is NOT describing the CIA technique. There is NO report that CIA uses anything close to what Nance is describing. In contrast, there have been several reports, including Kiriakou's recent interview with ABC, describing a techinique completely unlike what Nance is describing.

Bradbury effectively slapped down Nadler's (and now your) dishonest use of Nance's testimony.
 

If the CIA is not currently using the technique described, then it's only a matter of time until they do.
Brad's objection is a meaningless technicality.
 

Illustration
 

Bradbury only mentioned stomach distention as his "slapdown" differentiation - and yet, it was the simulation of drowning and not the "massive amounts of water going into the stomach" that was over and over the basis of the torture findings and very seldom did the water in the stomach even play a role or exist in the case facts and it isn't mentioned as a SERE waterboarding side effect either.

Now apparently Depalma can certify that the CIA, instead of even using SERE techniques, made up, as they went along and out of whole cloth (or damp cloth) the Doglickingface technique. None of which means anything. Becasue what was found to be torture was not some numeric stomach distension measurement, but instead the same thing that Depalma admits that even his version of the procedure involves, i.e., causing severe mental and physical panic and trauma to the point of mental breakdown, a panic and trauma induced by inability to breathe and simulated death by drowning.

Com'on. You don't stand correctly on just the hard facts that you have now gotten wrong by 50% in 33+% of the admitted waterboarding cases, you are flat out wrong that somehow stomach distension is an element of any case or analysis or the SERE procedures.

Similarly, you are dead wrong that intelligence oversight is being usurped by the Judiciary Commitee's investigation into crimes being committed by the Executive branch, and that an OLC run by a man who, under oath in his own hearings said that "the President is always right" as his interpretation of law, needs no oversight when it comes to the crimes committed at the behest of the man who is always right.

Still - I am fascinated by all your "inside" direct and specific knowledge of just what the CIA has been doing - so direct and specific that no investigations are needed to address the reports by men, like Dan Coleman, who go on the record, specifically and without hiding behind anonymity, and call torture for what it is.

So since you know so much more than Coleman - what about the hypothermia death in CIA hands? What about the 6 and 8 you children the CIA disappeared. What about el-Masri's kidnap?

What about the "legality" of all those things, done at the soliciation of a series of DOJ prosecutors in the pocket of a man they will go under oath and say "is always right."

Again, there really is no need to go to 8th amendment. Governmental attainder is expressly prohibited by the Constitution. And as to:

There is NO report that CIA uses anything close to what Nance is describing. It seems there were video reports that the CIA was using something close to what Nance was describing, and those were destroyed.

I can tell, in the greater scheme of things, I should be happy to see that you are admitting that, of the three reported waterboardings, you missed by over 50% on 33+% of them on your general statements.

But we both know that, behind that snipped down, grudging admission, there is a lot more that you know absolutely and will still never type. Because you've got to do your duty.

Even when that duty leaves dangling things like Canadians tortured on whim, Egyptian torture to pad out the Iraq war dossier for Bush, disappeared children under 10, and even a death by hypothermia in CIA hands.

You know that you are standing in quickstand, not on legal terra firma. And instead of taking any of the lines thrown to you, your preference, along with Mukasey, Bradbury, etc., is to drag the whole of the nation in with you.

You may even be, with your compatriots, successful. But some successes are best avoided.
 

this is the best account I know of waterboarding. It is by an experienced swimmer and diver much better than most people at controlling water in his upper respiratory tract. It gives a thoroughly detached, clinical and technical account of the experience, without holding back on its horrors.
 

I would like to ask Mr. DePalma if he could tell me how
interrogators of terrorists know when they have obtained
all of the information that a subject has to give, so as to
cease harsh methods.
FW
 

garth:

Kiriakou has second hand knowledge concerning what CIA is doing.

Nance has no knowledge at all what CIA is doing and never claimed that he did.
 

fw said...

I would like to ask Mr. DePalma if he could tell me how interrogators of terrorists know when they have obtained all of the information that a subject has to give, so as to cease harsh methods.

None of these guys are complete unknown quantities.

CIA usually has files on each of the high level al Qaeda officers with a variety of information from third sources.

Furthermore, CIA or the military have usually captured multiple terrorists who know one another and who can be played off one another.

You compare what you have already verified with what the interrogation subject is saying.

The subject also has no idea what you know. You can bluff him by claiming to have captured the subject's associates or know things that you do not. Generally, once the subject thinks or knows you have captured his associates, he gets demoralized and figures you have broken them. This makes the subject more willing to give up information which he thinks you have already have.

You can verify the subject's claims by cross checking them with the other prisoners or by checking out the identities and locations of the other enemy which he has given up.

Once you have developed a verified timeline of the subject's activities for the past few years and how it intersects with other subjects, you have basically exhausted his usefulness as an intelligence source.
 

Bart:
Nance has no knowledge at all what CIA is doing and never claimed that he did.


So how is it that you're so confident that you do? You certainly are not shy in claiming to be an authority.
 

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