Feature

The last instalment in this series laid out the basic facts of the Bush Administration’s plan to justify the use of torture through narrow interpretations of the terminology used to describe the practices labelled as “enhanced interrogation.” This article will be centred on the practices that skirted the legal category of torture under Bybee’s framework.

Torture’s Implementation and Impact

Contrary to Bybee’s claim about the effects of waterboarding, Zubaydah did have immediate and longstanding psychological impacts. New York Times article by Carol Rosenberg discussing some of the negative impacts of the Program, Zubaydah was waterboarded eighty-three times over 4 years. In a declassified Senate Intelligence Committee report from 2014, the CIA’s program was described as “brutal and far worse than the C.I.A. represented.” In Zubaydah’s own words he stated, “They kept pouring water and concentrating on my nose and my mouth until I really felt I was drowning, and my chest was just about to explode from the lack of oxygen.” Zubaydah further describes the immense pain he experienced in other torture methods. During the practice of “walling,” he states how he was blindfolded and had his head forcefully struck into a wall behind him. Rosenberg’s article details how with each strike, he was blinded for a few moments, would collapse, and “be dragged by the plastic-tape-wrapped towel ‘which caused bleeding in my neck.’” Zubaydah also states how he was denied sleep by being bound in uncomfortable positions and doused with water for “maybe two or three weeks or even more,” experienced convulsions and vomiting during waterboarding, and even lost consciousness.[i]

Contrary to the Bush Administration’s official position, prolonged physical and mental suffering were direct impacts of America’s use of torture. As detailed in How America Tortures, Mark P. Denbeaux writes that the CIA “The CIA admitted that sleep deprivation can induce hallucinations; however they falsely claimed, ‘those who experience such psychotic symptoms have almost always had such episodes prior…[ii]’” Denbeaux also references the Senate Select Committee on Intelligence findings that “…five detainees experienced ‘disturbing’ hallucinations during prolonged sleep deprivation (e.g., one detainee was ‘visibly shaken’ by his hallucination of dogs mauling and killing his sons and family). In at least two of those cases, the CIA continued the sleep deprivation.” Denbeaux also cites well-established psychological research that maintains sleep deprivation has negative impacts on mental stability within twenty-four hours. Even in this short time, individuals can develop permanent visual distortions, anxiety, and instability. Within thirty to forty-eight hours, illusions and simple visual hallucinations begin. Complex visual hallucinations occur within fifty-three hours, auditory within sixty, and develop within seventy-two.[iii] Denbeaux also writes how PTSD and other mental disorders are strong possibilities in those subjected to psychological torture. He states “Researchers conducted a survey on the use of physical torture as opposed to psychological torture, and the ‘researchers collected medical assessments of whether the torture survivors showed signs of PTSD…’They found no difference in the prevalence of this disorder between the two groups.[iv]” Following his torture, Zubaydah developed numerous mental and physical ailments as detailed in an LA Times article which states “…he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about two hundred seizures… Already, he cannot picture his mother’s face or recall his father’s name. Gradually, his past, like his future, eludes him.[v]”

Sources of Justification for Torture

After the memos were released, they quickly became the subject of public scrutiny and critique. Jack Goldsmith, who took over the OLC in 2003 stated the legal analysis they put forth was “deeply flawed” and “sloppily reasoned.[vi]” Instead of serving any tangible aim, the US use of torture exemplified a blatant disregard for the US Constitution as well as human rights. According to Torture and the Biopolitics of Race by Dorothy E. Roberts, these practices, whether occurring under the Bush administration or elsewhere in US History serve to uphold US hegemony and are an embodiment of white supremacist ideals. According to Roberts, the use of torture can be seen throughout the history of the US, especially in the colonial context. During the US colonial administration in the Philippines, torture was frequently used with overtly racist motivations. During the coverage of an insurrection, American correspondence stated Filipinos were “little better than a dog,” and that US troops were “not dealing with civilized people.” William Howard Taft, who was Governor-General at the time stated that the conflict was a war “between superior and inferior races.[vii]” During the Vietnam war, similar sentiments are echoed, as the US continued previous practices from the French colonial administration.[viii] On the use of torture during the War on Terror, Roberts writes that those attempting to justify the US’ actions “…focused largely on the precise definition of torture, or, more precisely, narrowing the definition enough to exempt U.S. officials from criminal liability under international and domestic laws.[ix]” Referring to the celebratory nature of lynching in the US, Roberts states “Whites purchased photographs of the mutilated bodies as mementos of the event and mailed gruesome picture postcards to their friends and relatives.[x]” She continues “…scholars have noted parallels between the contemporary mass circulation of photographs showing scenes of sexualized torture… Some poses in the Abu Ghraib photographs strikingly (and perhaps deliberately) mirror lynching iconography-the hooded detainee with a noose around his neck; the naked detainees posed in sexually humiliating positions, lacerated, shackled, and held by a dog leash; the U.S. soldiers grinning triumphantly in front of their degraded victims.[xi]” Islamophobia has been a foundational effort of the War on Terror since its earliest stages. According to Khaled A. Beydoun in Exporting Islamophobia in The Global “War on Terror,” this racism is best exemplified by President George W. Bush’s words “This is not . . . just America’s fight. And what is at stake is not just America’s freedom. This is the world’s fight. This is civilization’s fight. This is the fight of all who believe in progress and pluralism, tolerance, and freedom . . .. The civilized world is rallying to America’s side.” Bush’s words are a clear us vs them mentality with the “them” being a faceless and ambiguous yet inherently Muslim enemy.[xii] Since any Muslim has been presumed as a lesser enemy, the inhumane treatment is automatically justified.

Conclusion

Despite having declassified much of the information surrounding the use of torture in the War on Terror during the Obama administration, historical acknowledgement of the practice remains sparse. Additionally, torture has not been completely expunged from the possibility by the United States. In 2016, during his presidential campaign, Donald Trump stated the US should “bring back a hell of a lot worse than waterboarding,” adding “I like it a lot. I don’t think it’s tough enough.” Likewise, racialized comments remain within US political vernacular. As to why the US should continue to practice torture, President Trump stated, “We have to fight so viciously and violently because we’re dealing with violent people, vicious people.[xiii]” With the sentiment of “us vs them” remaining dominant in the US counterterrorist strategy (and to some extent policing domestically), the likelihood that torture will once again be implemented has not completely diminished.

[i] Carol Rosenberg, “What the C.I.A.’S Torture Program Looked like to the Tortured,” The New York Times, December 4, 2019, https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html.

[ii] Mark Denbeaux et al., “How America Tortures,” papers.ssrn.com, December 2, 2019, 26, (Rochester, NY, November 27, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3494533.

[iii] Denbeaux, et al., 29

[iv] Denbeaux, et al., 37

[v] Joseph Margulies, “The Suffering of Abu Zubaydah,” Los Angeles Times, April 30, 2009, https://www.latimes.com/archives/la-xpm-2009-apr-30-oe-margulies30-story.html

[vi] Michael Isikoff, “Torture Report Could Be Trouble for Bush Lawyers,” Newsweek, February 13, 2009, https://www.newsweek.com/torture-report-could-be-trouble-bush-lawyers-82707.

[vii] Dorothy E. Roberts, “Torture and the Biopolitics of Race,” University of Miami Law Review 62, no. 229, (2008): 241, https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1574&context=faculty_scholarship.

[viii] Roberts, 241-242

[ix] Roberts, 237

[x] Roberts 234

[xi] Roberts, 234

[xii] Khaled A. Beydoun, “Exporting Islamophobia in the Global ‘War on Terror,’” New York University Law Review Online 95, no. 81 (2020): 82, https://www.nyulawreview.org/online-features/exporting-islamophobia-in-the-global-war-on-terror/.

[xiii] Rory Cox, “Historicizing Waterboarding as a Severe Torture Norm,” International Relations 32, no. 4 (September 20, 2018): 488–512, https://doi.org/10.1177/0047117818774396.

The Torture Memos are a collection of documents from the US Justice Department Office of Legal Counsel regarding the use of torture against alleged members of al-Qaeda. The basic motivation of these documents was to determine whether the United States’ practice of “enhanced interrogation techniques” constituted torture under US and international law. They unilaterally justified the US’ practices. After the memos were leaked in 2004, they were lambasted as a clear disconnect from the War on Terror’s emphasis on protecting human rights. The memos are an extension of the legal strategies used to legitimize violations of liberal principles in order to maintain U.S. hegemony and empire. In this article, I will discuss the basic provisions of the torture memos. The next installment in this series will focus on the implementation and impacts that the Bush Administration’s controversial legal strategies caused.

Narrow Interpretations, Broad Implications

The first memo, titled Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, was authored by Jay Bybee, then-Assistant Attorney General, on 1 August 2002. Addressed to Counsel to the President, Alberto R. Gonzales, this document breaks down Section 2340 and requests the Office of Legal Council’s opinion on what constitutes torture under this statute. Bybee’s arguments are vague, and many were later determined to be untrue. From the earliest sections of this memo, Bybee asserts that torture is a very narrow practice according to Section 2340. He states the statute “makes it a criminal offense for any person ‘outside of the United States to commit or attempt to commit torture,’” adding that the statute defines torture as an “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering… upon another person within his custody or physical control.”[i] Bybee hones in on the language of the statute, stating it “requires that severe pain and suffering must be inflicted with specific intent…” adding “the defendant had to act with the express ‘purpose to disobey the law’ in order for the mens rea element to be satisfied.”[ii] According to Bybee, infliction of pain without “specific intent” does not violate the statute. If a defendant commits an act that does inflict pain with the knowledge that pain is likely, but not certain, “general intent” is satisfied, disqualifying the perpetrator from torture.[iii] Bybee further dissects the language of the statute, arguing that it does not define “severe” in relation to physical pain and “prolonged” in relation to mental harm. Bybee’s interpretation is that torture, as defined by Section 2340, is “not the mere infliction of pain or suffering on another, but is a step well removed. The victim must experience pain…equivalent to the pain that would be associated with serious physical injury so severe that death organ, failure, or permanent damage resulting in loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of these acts outlined in the statute, in addition, these acts must cause long-term mental harm.”

In section II, Bybee argues that international law reinforces his interpretation of 2340. He references the UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), which states that torture is

 “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

In response, Bybee states, Accordingly, severe pain or suffering need not be inflicted for those specific purposes to constitute torture; instead, the perpetrator must simply have a purpose of the same kind… the pain and suffering must be severe to reach the threshold of torture.[iv]”

Bybee authored another memo titled Interrogation of al Qaeda Operative in which he addressed John A. Rizzo, General Counsel of the CIA, following a similar request to that of the Gonzales. This document covers the torture of Abu Zubaydah and goes into detail about the interrogation practices in question. At the time, Zubaydah was incarcerated in the US under the presumption that he had information on terror cells and plots in the US and Saudi Arabia. According to Rizzo and the CIA, the level of “chatter” surrounding the supposed cells warranted an “increased pressure phase” which was ultimately the interrogations involving torture. He states that the “interrogations” will last “no more than several days but could last up to thirty days” and will employ 10 techniques to “dislocate expectations regarding the treatment he believes he will receive and encourage him to disclose the crucial information” and employ ten different methods.[v] In describing these methods, all of which involve a degree of physical pain, discomfort, and/or mental strife, the illusion to specific intent is seen. In describing one of these methods, called “facial/insult slap” where an interrogator slaps a prisoner in the face in such a way to increase pain, he writes the intent is to “not inflict physical pain that is severe or lasting. Instead… to induce shock, surprise, and/or humiliation.”

Waterboarding is one of the more infamous methods that the US employed during its duration of the use of torture. Bybee’s memo discusses the practice in detail, and establishes the Bush administration’s legal strategy around this unsavoury tactic as follows:

“…the individual is bound securely to an inclined bench… The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. Once the cloth is completely saturated and covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds… this causes an increase in carbon dioxide in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic’ i.e., the perception of drowning.” He continues by stating “You have orally informed us this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning.” Bybee also acknowledges technique will be used on Zubaydah stating a medical professional would be in attendance to “prevent severe mental or physical harm to Zubaydah.[vi]”

Bybee goes on to claim that these methods, waterboarding included, did not result in “prolonged mental harm.” Because the tortured subject “may” be aware that they are not drowning despite the fact they feel like they are, the act cannot be considered torture because of the purported sanitizing quality of this possibility. Additionally, he focuses on the lack of physical pain involved in simulated drowning. He references his memo to Gonzales stating “’ pain and suffering’ as used I section 2340A is best understood as a single concept, not distinct concepts…the waterboard, which inflicts no pain or actual harm whatsoever, does not in our view inflict ‘severe pain or suffering…[vii]’”

[i] Jay Bybee, “Memorandum for Alberto R. Gonzales, Counsel to the President Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A,” August 1, 2002, 2–3, https://nsarchive2.gwu.edu/NSAEBB/NSAEBB127/02.08.01.pdf.

[ii] Bybee, 3

[iii] Bybee, 3

[iv] Bybee, 14-15

[v] Jay Bybee, “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency Re: Interrogation of al Qaeda Operative,” Justice.gov, August 1, 2001, 1 , https://www.justice.gov/sites/default/files/olc/legacy/2010/08/05/memo-bybee2002.pdf.

[vi] Bybee, 3-4

[vii] Bybee 11