Strong opinions, weakly held

Reading the Jay Bybee memo from August 1, 2002

I am a notorious skimmer, but I decided to read the torture memos in full. I started with the Bybee memo, issued on August 1, 2002. In it, Office of Legal Cousel attorney Jay Bybee responds to a CIA request to torture Abu Zubaydah. The CIA’s argument is that the threat level to the US at the time of the request is higher than it was before 9/11, and that Abu Zubaydah is unlikely to disclose any additional information absent torture.

The request is for permission to use ten techniques, which are listed as follows:

(1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard.

The techniques are described in explicit detail, with careful guidelines for how they are meant to be applied. We needn’t guess whether the interrogators stayed within these bounds. The recently released Red Cross report on torture holds the answers.

At that point, there are several pages of arguments that the interrogation techniques that were to be applied have not driven more than a few people subjected to them as part of SERE training crazy. This evidence is later used to argue that the interrogators are operating in good faith in trying to avoid violating anti-torture legal statutes.

Next there’s a psychological profile of Abu Zubaydah. In short, he is described as exactly the kind of person who needs to be tortured.

Bybee then goes on to explain his legal rationale for arguing that applying the techniques listed does not constitute torture. He lists five criteria that an act must meet to violate a particular statute against torture. The first three criteria are inarguably met. That leaves the last two — that the interrogator intended to inflict severe pain or suffering and that they did, in fact, inflict severe pain or suffering.

Bybee decides to consider physical pain and mental pain separately and argues that examples of torture that inflict “severe pain” are, and I quote, “severe beatings with weapons such as clubs” and “the burning of prisoners.” Since in his opinion none of the acts meet those standards of pain, he argues they are not torture. After going over each proposed technique one by one in terms of the amount of pain caused, he argues that pain and suffering are the same thing, and thus chooses to ignore the fact that most of the techniques on the list are designed to inflict suffering. (One of Andrew Sullivan’s readers demolishes this argument.)

Next he turns to mental pain. The statute lists four criteria for acts that can cause prolonged mental harm. He focuses on whether or not any of the techniques alone or in combination can, from a reasonable torture victim’s point of view, be thought to constitute a threat of severe physical pain or suffering, or death.

Again, Bybee goes over each of the techniques and explains why they do not constitute a threat of severe pain or death. He’s careful to let them know that they can’t threaten him while they’re committing the acts, or that will violate the statute. Eventually he gets to waterboarding, which presents a problem because it is intended to produce the sensation of imminent death by drowning, and is therefore a predicate act that meets the criteria for torture. However, Bybee gives this technique a pass because it can be argued that waterboarding does not inflict “prolonged mental harm”.

Bybee then acknowledges that if you used several of the techniques in rapid succession and perhaps verbally threatened Abu Zubaydah at the same time, it would constitute a threat of severe physical harm or death. However, even that, in Bybee’s estimation, is not a violation of the statue because it wouldn’t cause prolonged mental harm (just as is the case for waterboarding alone).

At that point, he turns to the question of intent. His argument here is that as long as the interrogators don’t believe that they are going to cause severe harm or suffering, they’re in the clear. So even given the legal risks that accompany making someone believe they’re going to drown, the interrogators will not violate the statute because they don’t intend to cause severe pain or suffering. In this case, wishing really will make it so.

The memo is amazing to read, because it is, essentially, a long argument that the techniques in question do not create the very effects for which they are designed. The entire purpose of each of the techniques is to inflict pain or suffering, with the specific goal of forcing the subject to disclose information. In discussing whether stress positions cause severe pain, Bybee writes, “Any pain associated with muscle fatigue is not of the intensity sufficient to amount to ‘severe physical pain or suffering’ under the statute, nor, despite its discomfort, can it be said to be difficult to endure.” If it’s not difficult to endure, how could it possibly be an effective interrogation technique?

Likewise, in discussing placing an insect in an unlit, confining box with Abu Zubaydah, Bybee writes, “An individual placed in a box, even an individual with a fear of insects, would not reasonably feel threatened with severe physical pain or suffering if a caterpillar was placed in the box.” Of course, as is made clear elsewhere, Abu Zubaydah was to be told that the insect is a stinging insect. I find it difficult to imagine that anyone placed in a dark, coffin sized box with a stinging insect would not expect severe physical pain.

I really think that people should read these memos and ask themselves if this is the kind of power we want to see the government granting to itself. These memos take on these issues in the most detached and legalistic terms. The results were a regime that was much more savage, unconstrained, and persistent than they are imagined to be by the lawyers who cooked up the legal justifications for them.


  1. Clearly, Bybee has read his Joseph Heller. Torture is OK because it isn’t torture, and if it was torture we wouldn’t be doing it. Please hand me that electric wire and expose the prisoner’s nutsack.

    “There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.”

    “That’s some catch, that catch-22,” he observed.

    “It’s the best there is,” Doc Daneeka agreed.

  2. I think if Mr. Bybee would volunteer and then was taken by surprise immediately to an unknown location and undergoes the interrogation techniques by Arabic speaking strangers for the duration of Abu Zubaydah’s interrogation without admitting what he is undergoing is torture then I would be willing to exonerate him.

    But, I seriously doubt he has the fortitude, stamina or resolve to do so.

  3. I have read the Bybee memoranda, and I conclude that the decision to employ enhanced interrogation techniques were not undertaken recklessly or even casually. I have also read all of the “legal” definitions of “torture,” and I cannot conclude that waterboarding, head slapping, exposure to temperature extremes or insects, etc. are included within the definitions. None of these experiences is more than we require in Marine boot camp and School of Infantry. All Marines must endure exertion to the limit of physical and mental endurance, sleep deprivation, temperature extremes, and many temporary injury-inflicting experiences, including the “gas chamber.” Most, if not all, Marine Scouts enjoy waterboarding as part of their training. In fact, as a teenager in the Boy Scouts, I and many of my friends subjected ourselves to worse on backpacking survival exercises in the Sierras. So, I hope most people would agree that the definition of torture necessarily includes a component which accounts for a person’s character and life experiences. In the cases at issue, the recipients of enhanced interrogation procedures were mid- and high-level leaders of uber-violent organizations proficient in bombings and beheadings, and I submit that the definition of torture for these people is significantly different from what it would be for ordinary soldiers acting on behalf of an organized nation-state. Frankly, I view the analysis in the foregoing blog as the product of a soft life with few mental or physical challenges, and I worry that our nation is degraded by lack of real-world experience and excessive utopian intellectualization.

  4. David, Although I agree that each person has different tolerances to interrogation techniques, the problem with using a “definition of torture [that] necessarily includes a component which accounts for a person’s character and life experiences” is in it’s application. It’s completely arbitrary. The person administering the “enhanced interrogation techniques” is unlikely to be able to unbiasedly and accurately determine what is “proper”, as their motivation is to extract information.

    And I disagree that our nation is “degraded by lack of real-world experience and excessive utopian intellectualization”. Rather, it is degraded by people who believe it’s proper and allowable to uphold the moral ideals of this country by committing immoral acts.

  5. I’ve read the Bybee memo and legal definitions of torture too, and do not agree that the enhanced interrogation techniques constituted torture. Obama is naive, inexperienced, politically motivated, and self-interested – and it is sick. He is risking the security of our country. The people that we are using these enhanced interrogation techniques on are dangerous terrorists who are plotting to severely harm our country. Does Obama think the CIA can sit down and have tea with them, and politely ask them to disclose everything they know, and somehow they will?

  6. Donna Tagliaferri

    April 23, 2009 at 6:56 pm

    One thing you have missed is the information that was gleaned from Abu Zubaydah….Be very careful of your opinion of Jay Bybee….he is a fine judge, a fine man and his memo helped keep our country safe. This is political…..in Garafalo’s words…straight up.

  7. Donna Tagliaferri

    April 23, 2009 at 7:02 pm

    Again attacking Jay Bybee is a mistake. You know nothing about him and have no idea what he can survive. The problem with these situations is we make judgements without information. People are destroyed with almost no care, Jay Bybee put far more time into the memos than Doc Holliday did with his opinion. Be critical thinkers not sheep

  8. Here’s my rule of thumb: If we as a nation get up in arms when other countries do it to our soldiers, we shouldn’t do it to anyone whether they be classified as terrorists, enemy combatants, or soldiers. Waterboarding immediately fails that test.

  9. Doc Holiday, Mr. Bybee doesn’t need to undergo your version of interrogation, the Justice Department just cleared him of wrongdoing. And, that is from a DOJ that doesn’t agree with the methods he correctly cited as legal. When folks who had prejudged him when they opened their investigation now say he did not conduct professional misconduct, then you know he has clearly been wrongly charged.

    Btw, in your fictional scenario you had Mr. Bybee being interrogated in Arabic, that would be extremely unproductive unless he speaks that language. When we interrogate a foreigner we do speak to them in a language in which they are conversant.

  10. Let’s be clear, he wasn’t exonerated. The DoJ suggested that he be cited for professional misconduct but the Office of Professional Responsibility declined to do so. But both the report on Bybee and the Margolis’ ruling that explained why the OPR was not referring the case to his state bar made it perfectly clear that his work was very shoddy indeed.

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