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.
 

10/31/2007 - From TPM

[L]isten to longtime counterterrorism expert Malcolm Nance. Nance, a veteran of counterterrorism operations in Iraq, has written a moving post for the counterinsurgency blog Small Wars Journal explaining, in more detail than anyone else has in public, what exactly waterboarding is.

And Nance knows what he's talking about. As a former instructor at the Navy's training program, Nance (full disclosure, a TPMm pal) confesses that he "personally led, witnessed and supervised waterboarding of hundreds of people" -- not detainees, of course, but would-be SEALs, so they could learn how (hopefully) to resist torture. That training program, known as Survival, Evasion, Resistance, Escape (SERE), became a template for how to abuse detainees in U.S. custody.

Nance's experience leads him to some sharp conclusions:

1. Waterboarding is a torture technique. Period. There is no way to gloss over it or sugarcoat it. It has no justification outside of its limited role as a training demonstrator. Our service members have to learn that the will to survive requires them accept and understand that they may be subjected to torture, but that America is better than its enemies and it is one’s duty to trust in your nation and God, endure the hardships and return home with honor.

2. Waterboarding is not a simulation. Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.

Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning. How much the victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim’s face) and the obstinacy of the subject.

A team doctor watches the quantity of water that is ingested and for the physiological signs which show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.

Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration –usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death. Its lack of physical scarring allows the victim to recover and be threaten with its use again and again.

Call it “Chinese Water Torture,” “the Barrel,” or “the Waterfall,” it is all the same. Whether the victim is allowed to comply or not is usually left up to the interrogator. Many waterboard team members, even in training, enjoy the sadistic power of making the victim suffer and often ask questions as an after thought. These people are dangerous and predictable and when left unshackled, unsupervised or undetected they bring us the murderous abuses seen at Abu Ghraieb, Baghram and Guantanamo.

No doubt, to avoid human factors like fear and guilt someone has created a one-button version that probably looks like an MRI machine with high intensity waterjets.
 

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
 

Kiriakou was not personally involved in torturing Zubaydah, but was part of an interrogation team that questioned him in a hospital in Pakistan after he was captured in 2002.

K merely confirms that Z was tortured.

Zubaydah recall is the high level detainee that, as Ron Suskind reported widely, was borderline mentally retarded and most likely schizo... not a major player.

we could go to the tape, but, oh yeah, videotape of his interrogation has been destroyed.

Nance point out eloquently that he knows far more about this than you.

"As a former Master Instructor and Chief of Training at the US Navy Survival, Evasion, Resistance and Escape School (SERE) in San Diego, California I know the waterboard personally and intimately. SERE staff were required undergo the waterboard at its fullest. I was no exception. I have personally led, witnessed and supervised waterboarding of hundreds of people. It has been reported that both the Army and Navy SERE school’s interrogation manuals were used to form the interrogation techniques used by the US army and the CIA for its terror suspects. What was not mentioned in most articles was that SERE was designed to show how an evil totalitarian, enemy would use torture at the slightest whim. If this is the case, then waterboarding is unquestionably being used as torture technique.

The carnival-like he-said, she-said of the legality of Enhanced Interrogation Techniques has become a form of doublespeak worthy of Catch-22. Having been subjected to them all, I know these techniques, if in fact they are actually being used, are not dangerous when applied in training for short periods. However, when performed with even moderate intensity over an extended time on an unsuspecting prisoner – it is torture, without doubt. Couple that with waterboarding and the entire medley not only “shock the conscience” as the statute forbids -it would terrify you. Most people can not stand to watch a high intensity kinetic interrogation. One has to overcome basic human decency to endure watching or causing the effects. The brutality would force you into a personal moral dilemma between humanity and hatred."

but not for you eh, bart?

"Once at SERE and tasked to rewrite the Navy SERE program for the first time since the Vietnam War, we incorporated interrogation and torture techniques from the Middle East, Latin America and South Asia into the curriculum. In the process, I studied hundreds of classified written reports, dozens of personal memoirs of American captives from the French-Indian Wars and the American Revolution to the Argentinean ‘Dirty War’ and Bosnia. There were endless hours of videotaped debriefings from World War Two, Korea, Vietnam and Gulf War POWs and interrogators. I devoured the hundreds of pages of debriefs and video reports including those of then Commander John McCain, Colonel Nick Rowe, Lt. Dieter Dengler and Admiral James Stockdale, the former Senior Ranking Officer of the Hanoi Hilton. All of them had been tortured by the Vietnamese, Pathet Lao or Cambodians. The minutiae of North Vietnamese torture techniques was discussed with our staff advisor and former Hanoi Hilton POW Doug Hegdahl as well as discussions with Admiral Stockdale himself. The waterboard was clearly one of the tools dictators and totalitarian regimes preferred."

Torture in captivity simulation training reveals there are ways an enemy can inflict punishment which will render the subject wholly helpless and which will generally overcome his willpower. The torturer will trigger within the subject a survival instinct, in this case the ability to breathe, which makes the victim instantly pliable and ready to comply. It is purely and simply a tool by which to deprive a human being of his ability to resist through physical humiliation. The very concept of an American Torturer is an anathema to our values.

I concur strongly with the opinions of professional interrogators like Colonel Stewart Herrington, and victims of torture like Senator John McCain. If you want consistent, accurate and reliable intelligence, be inquisitive, analytical, patient but most of all professional, amiable and compassionate.

Who will complain about the new world-wide embrace of torture? America has justified it legally at the highest levels of government. Even worse, the administration has selectively leaked supposed successes of the water board such as the alleged Khalid Sheik Mohammed confessions. However, in the same breath the CIA sources for the Washington Post noted that in Mohammed’s case they got information but "not all of it reliable." Of course, when you waterboard you get all the magic answers you want -because remember, the subject will talk. They all talk! Anyone strapped down will say anything, absolutely anything to get the torture to stop. Torture. Does. Not. Work.

According to the President, this is not a torture, so future torturers in other countries now have an American legal basis to perform the acts. Every hostile intelligence agency and terrorist in the world will consider it a viable tool, which can be used with impunity. It has been turned into perfectly acceptable behavior for information finding.

A torture victim can be made to say anything by an evil nation that does not abide by humanity, morality, treaties or rule of law. Today we are on the verge of becoming that nation. Is it possible that September 11 hurt us so much that we have decided to gladly adopt the tools of KGB, the Khmer Rouge, the Nazi Gestapo, the North Vietnamese, the North Koreans and the Burmese Junta?
 

Perhaps this is what Bradbury means. Small comfort to the war criminals himself.

Again Kiriakou did not observe the torture. I would say Nance is far more credible than Bradbury.

Before Kiriakou was ordered to shut up, he did say this.

The former intelligence officer says the interrogators’ activities were carefully directed from Langley, Va., each step of the way.

It wasn’t up to individual interrogators to decide, ‘Well, I’m gonna slap him.’ Or, ‘I’m going to shake him.’ Or, ‘I’m gonna make him stay up for 48 hours.’

“Each one of these steps, even though they’re minor steps, like the intention shake, or the open-handed belly slap, each one of these had to have the approval of the deputy director for operations,” Kiriakou told ABC News.

“The cable traffic back and forth was extremely specific,” he said. “And the bottom line was these were very unusual authorities that the agency got after 9/11. No one wanted to mess them up. No one wanted to get in trouble by going overboard. So it was extremely deliberate.”
 

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.
 

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

This of course is absurd. The CIA has admitted it has waterboarded.

Nance would qualify as an expert on waterboarding dontchathink. in ALL of it's various forms.

I got the distinct impression there is NO humane way to do it.

That's why it's TORTURE.
 

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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