Friday, April 17, 2009

Torture Rationalized

Well, the torture memos have been posted on The New York Times' web site.

So what acts of torture (excuse me, "enhanced interrogation techniques" did CIA officials ask the Justice Department to use?

1. the "attention grasp" - grasping the prisoner with both hands - one on each side of the collar. I guess this makes the prisoner think he might be choked to death.

2. "walling" - shove the prisoner back-first into a make-through wall with enhanced sound so that it seems like he or she is being shoved into a real wall. Whiplash is prevented through the use of s towel or rolled head.

3. "face hold" - immobilize face with hands. An act of physical intimidation - basically the means to convince a prisoner that he or she will be tortured or beaten if he or she does not cooperate.

4. "facial slap" - see the movie "Rendition" but really, no need to explain this.

5. "cramped confinements" - leave the prisoner in s tightly closed space for a period lasting no more than 2 hours or 18 hours (depending upon the size of the space).

6. "wall standing" - prisoner leans into wall (from 4 to 5 feet away) and supports his or her otherwise motionless body with his or her fingers. intended.

8. "Sleep deprivation" - obvious but the period described can last 11 days. There is an understanding that this could lead to "abnormal reactions" or "psychological problems" so doctors will be present. The availability of medical personnel proves acknowledgment of torture.

9. Insect - drop a harmless insect (though the prisoner is told it is the insect he or she fears the most) into the box with the prisoner

10. Waterboarding - I'll just take from the memo:

"In this procedure the , the individual is bound securely to an inclined bench, which is usually four feet by seven feet. 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. As this is done the cloth is lowered until it covers the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, airflow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide causes stimulates increased efforts to breathe. This effort plus the cloth produces the perception of "suffocation and incipient panic."

It should be noted at the outset that these techniques were to be employed in an "increased pressure phrase," in "some sort of escalating fashion." Implicit in this description is the acknowledgment that the CIA was not dealing with a "ticking bomb" scenario used to justify these techniques.

Oddly enough, the employment of these "enhanced interrogation techniques on Zubaydah are justified by noting how he is familiar with and probably trained on coping with these techniques.

Some of these techniques may fall within the legal parameters of permissible conduct and others do not. Some are borderline but the Justice Department provides no clear guideline for differentiating between acts which cause "discomfort" and acts that cause severe, acute, and enduring pain.

The CIA officials requesting a legal opinion are told that the "stress position" and "walling" techniques" employed might cause "muscle fatigue" and maybe even "pain" but not of the intensity sufficient to amount to 'severe physical pain or suffering." To qualify as "severe physical pain or suffering," it must be "difficult for the individual to endure" and be as intense as that "accompanying serious physical injury." The "muscle fatigue," for all we know, mibht be "difficult to endure." The sensation of drowning a prisoner may feel as his or her air flow is slightly restricted and water is poured over his or her face could be "difficult to endure."

Nowhere, however, in former U.S.Attorney Jay S. Bybee's opinion, however, are these phrases "difficult to endure" or"accompanying serious physical injury" are not defined so it would be hard for any CIA official to credibly suggest that its techniques are legally permissible and the the authors of these memos would find it difficult to explain their reasoning.

The burden for proving mental abuse which the Justice Department authors rely on is inexplicably high, for they say any and all of the four "predicates," (intentional infliction or threat of infliction of severe pain, intentional infliction or threat of infliction of death, the administration of or threat of administering mind-altering substances or the threat that any of the said acts will be inflicted upon someone else) each which separately would be sufficient to classify an technique as an act of torture, must be invoked before the employment of that act would be forbidden.

Bybee use tortured logic to uphold the "attention grasp" and facial hold. They say both techniques can be utilized since any "threat of severe physical pain or suffering" would have to be inferred as long as such threats were not explicitly stated. That threat will, could easily, however, be inferred, when an act akin to choking the person is utilized. The use of waterboarding clearly presents a case where there is an imminent threat of death. It however, inexplicably survives the Judicial Department's scrutiny since there is no known threat of prolonged mental harm.

Ultimately, anything which the CIA employed would survive scrutiny if the intent nullification rule is employed. According to the Justice Department employees' reasoning, the intent to harm a person must be proven before any technique can be considered an act of torture.

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