an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I was all set to zone out this vacation when we happened to stroll past an SUV featuring one bumper sticker (among others) announcing: “Waterboarding: Keep it safe, legal and rare.” Nothing like a little vacation motivation to make me peruse (at an admittedly slower pace) the wave of old OLC memos that came along with the 2004 CIA inspector general’s report and other CIA memos that documented in brutal detail exactly what we were doing to prisoners of that era. While I haven’t come close to reading everything yet, I’d say the most remarkable memo I’ve encountered so far out of DOJ is one of far more recent vintage: a July 20, 2007 memo from then Principal Deputy Assistant Attorney General Steven Bradbury to John Rizzo, Acting CIA General Counsel.
Daphne Eviatar has written about it a bit already. There are a host of features that make this memo remarkable. Can’t decide whether it’s more the timing, or the celebration of Yoo-like lawyering. Here are some thoughts on both.
First, an overview. The 79-page memo is a dazzling explanation as to why there is no legal problem with any of 6 coercive interrogation techniques the CIA would like to continue to perform in service of its no longer secret interrogation program for “high value” detainees. These techniques, we read over and over - and over - again during the ensuing “legal” analysis, are the “minimum necessary to maintain an effective program for obtaining the type of critical intelligence from a high value detainee that the program is designed to elicit.” What’s on the list? Two “conditioning” techniques, and 4 “corrective” techniques we’ve seen elsewhere in the just released docs: (1) “dietary manipulation”; (2) “extended sleep deprivation”; (3) the “facial hold”; (4) the “attention grasp”; (5) the “abdominal slap”; and (6) the “insult (or facial) slap.” Each comes with several pages of descriptions of exactly what is allowed and not, all worth a read. (The 1,000 kcal/daily caloric intake restriction, for instance, can continue until the detainee has lost 10% of their body weight; for a 200-lb. man, that’s 20 lbs.) More on the sleep deprivation scheme in particular below.
By 2007, of course, Abu Ghraib and the bipartisan, international outrage it provoked was well understood, and its effects continued to be felt in diminished counterterrorism cooperation with our allies and a recruiting boon for the Iraq insurgency. (For more on this, see, e.g., here or here.) The Administration had thrice lost badly in the Supreme Court, which kept rejecting its claims of sweeping executive authority in the realm of detention, and had just in the previous year (in Hamdan) made singularly clear that Common Article 3 of the Geneva Conventions and its protections against cruelty applied to the conflict with Al Qaeda. Congress had passed the Detainee Treatment Act making clear that prisoners held anywhere by any agent of the United States could not only not be subject to “torture,” but were also protected from “cruel, inhuman or degrading treatment.” And the Military Commissions Act of 2006 (MCA) clarified that cruel or inhuman treatment was indeed a war crime – a crime encompassing treatment that could be at least in some respects less severe than the treatment constituting “torture” per se. More on that below, too.
In any case, one really might have thought that at least one of these developments might lead OLC to revise or amend its legal analysis, even a little bit, from the John Yoo-type torture memo logic circa 2002 in determining whether the CIA’s proposal violated either the War Crimes Act, the new Detainee Treatment Act (DTA), or Common Article 3. Or from DOJ memos on the same topic from 2005. As it turns out, not so much.
Let’s take sleep deprivation. Here are parts of how the memo describes how the CIA plans to keep detainees awake for 4 days in a row (or longer if there is sufficiently high level approval):
[T]he CIA uses physical restraints to prevent the detainee from falling asleep. The detainee is shackled in a standing position with his hands in front of his body, which prevents him from falling asleep but allows him to move around within a two- to three-foot diameter area. The detainee's hands are generally positioned below his chin and above his heart. Standing for such an extended period of time can cause the physical effects that we describe below. We are told, and we understand that medical studies confirm, that clinically significant edema (an excessive swelling of the legs and feet due to the building up of excess fluid) may occur after an extended period of standing. [Much later in the memo, it is noted that “if edema becomes sufficiently serious, it can increase the risk of a blood clot and stroke.”] ….
We understand that detainees undergoing extended sleep deprivation might experience "unpleasant physical sensations from prolonged fatigue, including a slight drop in body temperature, difficulty with coordinated body movement and with speech, nausea, and blurred vision." Extended sleep deprivation may cause diminished cognitive functioning and, in a few isolated cases, has caused the detainee to experience hallucinations…. Because releasing a detainee from the shackles to utilize toilet facilities would present a significant security risk and would interfere with the effectiveness of the technique, a detainee undergoing extended sleep deprivation frequently wears a disposable undergarment designed for adults with incontinence or enuresis.
There are various caveats sprinkled through this section. In forcing a detainee to remain standing for hours or days on end in order to keep him awake, letting the detainee hang from his wrists was evidently not permitted. (It’s speculation, but I wonder if this was a lesson learned from the officially designated “homicide” of Manadel al-Jamadi, the detainee who died in U.S. custody (reportedly including at least one CIA interrogator) hanging from his wrists at Abu Ghraib?) And medical personnel were to monitor the whole thing closely, stopping or shifting stress position techniques (from forced standing, to shackled to a stool) if “clinically significant edema” developed. Wonder, too, what the odds are of a situation in which the doctor doesn’t time intervention quite right and detainee loses his mind or has a stroke before operations cease?
On to the lawyering. The War Crimes Act (for example) makes criminal (among other) acts of “cruel or inhuman treatment” that are “intended to inflict severe or serious physical or mental pain or suffering …, including serious physical abuse, upon another within his custody or control.” What constitutes, say, “serious mental suffering”? As amended by the MCA in 2006, and as most relevant here, the term is defined for conduct occurring before 2006 as “the prolonged mental harm caused by or resulting from-- (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of … procedures calculated to disrupt profoundly the senses or the personality…” Critically, for conduct occurring after the MCA’s enactment – i.e. for any conduct addressed by the forward-looking 2007 memo – “prolonged mental harm” was no longer required. Instead, “serious mental suffering” is to include “non-transitory mental harm (which need not be prolonged).” The MCA was rightly criticized by human rights lawyers and others as effectively equating the terms “torture” and “cruel and inhuman treatment” by defining the “serious mental harm” necessary for cruel treatment to be the same as the “severe mental harm” necessary to constitute torture. One might naively imagine “severe” to be worse than (or at least different from) “serious” (and torture to be worse than cruel treatment). And one would find substantial support in international law for the latter distinction especially. But there it is. At least the statute seemed to establish that for conduct going forward, the harm itself need not be carried out over a prolonged period.
So why doesn’t the administration of hallucination-inducing sleep deprivation and humiliation-necessitating diapering plan amount to, for example, a procedure “calculated to disrupt profoundly the senses”? An especially tricky conclusion given that a previous Bush OLC memo had already held that hallucination could constitute a profound disruption of the senses if it was of sufficient duration. But as the memo explains: “Whether or not a hallucination of the duration at issue here were to constitute a profound disruption of the senses,” DOJ had already concluded that this kind of hallucination doesn’t last long enough to amount to ‘prolonged mental harm’ under the pre-2006 anti-torture provision of the War Crimes Act. That the statute was amended to change the definition of cruel treatment from one requiring “prolonged mental harm” to requiring “serious and non-transitory mental harm (which need not be prolonged)” has, as it turns out, no effect on this conclusion. “The modification is a refocusing of the definition on severity – some combination of duration and intensity – instead of its prior reliance on duration alone.” I’m honestly not sure what that means, given the definitions of both torture and cruel treatment are all about the seriousness or severity of the treatment (i.e. intensity), but there you have it. In any case, the memo explains, sleep deprivation can’t be “calculated” to “profoundly disrupt the senses” because the CIA doesn’t mean to “confuse” the detainee into inadvertently disclosing information. The CIA just wants to “wear down the detainee’s resistance” enough to “secure his agreement to talk.” Kind of like intensive contract negotiation.
You might now begin to understand why the memo takes 79 pages to make its case. The image that kept coming to mind as I tried to sort through the reasoning was one of those dizzying Escher paintings, where one’s eyes try in vain to follow a staircase to its logical conclusion, and yet keep being tricked when it turns out the staircase turns back upon itself, or otherwise enters into a parallel and upside down universe in which no rules of gravity, logic, or meaning apply. It’s not that this memo in these respects are so different in that respect from the famous Yoo memos c.2002. It’s that it builds on those memos’ logic, doubles down on their policies, and runs right over the intervening changes in the law that should have made it at least modestly harder, by 2007, to keep barreling down this road. As it turns out, not so much. Posted
by Deborah Pearlstein [link]