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The Empty Circularity of the Lastest Batch of OLC Torture Memos

By Jack M. Balkin

Defenders of the OLC torture memos have maintained for months that it is unfair to criticize Bush Administration lawyers for their ?good faith? legal analysis, issued under pressure and the threat of additional terrorist attacks. Legal analysis often contains a margin of uncertainty, these defenders remind us, so the fact that the legal reasoning in the memos has been widely condemned as unsound does not show that the memos were written in bad faith. A criminal investigation of these patriotic OLC lawyers?Yoo, Bybee, Bradbury, Delahunty?for aiding the violation of U.S. laws against torture, we are told, would be a travesty of justice.

This defense was always a stretch, given the transparent weakness of the legal analysis in the memos (later withdrawn as faulty by the Bush Administration). With the latest release of torture memos, however, this defense completely falls to pieces.

The memos begin by repeating this claim: ?Torture is abhorrent and universally repudiated, and the President has insisted that the United States will not tolerate it.? The legal analysis revolves around the prohibition of torture as defined in the statute (18 U.S.C. Section 2340(1)): ?an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering?upon another person within his custody or physical control.? The memos examine the techniques utilized by CIA interrogators and declare that they do not violate the anti-torture statute.

It will be easy to show that the analysis in the torture memos is entirely circular, and ultimately empty. Before getting to that, here is the list of actions that were granted legal approval: manipulating food intake, stripping clothes, grabbing and holding face, slapping face, slapping abdomen, placing in stress position for hours (standing, sitting with hands above head, kneeling position), slamming head and shoulders against a flexible wall (called ?walling?), dousing in stream of cold water, keeping in a ?cramped? space (just enough room to stand or sit in darkness), keeping awake for days on end, and waterboarding.

More specifically, the memos approved the legality of the following interrogation practices:

1) throwing a prisoner?s head and shoulders against a flexible wall ?twenty or thirty times consecutively when the interrogator requires???;

2) dousing detainee in constant flow of cold water; 41 degrees for no more than 20 minutes, 50 degrees for no more than 40 minutes, and 59 degrees for no more than 60 minutes;

3) sleep deprivation ?may continue to the 70 to 120 hour range, or possibly beyond for the hardest resisters, but in no case exceed the 180 hour time limit.? (The prisoners were kept awake by chaining them in a standing position so that, if they dozed off, they would be awakened by the sense of falling and by the jolt of the weight of their body against the chains.);

4) a maximum of two waterboarding sessions (strapped to the board) a day on a prisoner, each session lasting no longer than two hours; no more than 6 episodes of waterboarding per session; and no single continuous dose of water exceeding 40 seconds;

5) for cramped confinement, ?confinement in the larger space [standing room] may last no more than 8 hours at a time for no more than 18 hours a day; for the smaller space [sitting room only], confinement may last no more than two hours."

A look at this list prompts an obvious question: On what basis did OLC lawyers determine that these particular actions did not inflict severe physical or mental suffering (the legal standard for torture)?

Why not bounce the prisoner?s head against the wall 50 times? (The CIA claims that ?walling? is not ?significantly painful? because the wall flexed). Why can a prisoner be kept continuously awake for a week, rather than 5 days or 14 days? Why only 6 times per waterboarding session, with a maximum of 40 seconds each time? Why not 8 or 10 times per session (or 3 times) of 50 seconds each?

Whether these practices constitute ?torture? is far more problematic than these obviously difficult questions alone suggest. A major complication arises because these techniques were utilized in combination. Thus, their combined effect in the context of interrogations is what must be evaluated, not the individual techniques in isolation (a 10 May 2005 memo was devoted entirely to the combined effect).

Recall that the memos were written because the CIA sought legal sanction for the actions of interrogators (apparently most of the techniques were already being utilized, so this amounted to retroactive legal blessing). The agents doing the dirty work, naturally, did not want to be charged with crimes.

The CIA came up with all of the techniques, including the limits, with input from the CIA?s Office of ?Medical Services.? The techniques were taken from the military SERE?Survival, Evasion, Resistance, Escape?manual, used by the military to train U.S. soldiers in resisting torture.

Here is the circularity in the analysis: Time and again the OLC memos conclude that the use of these interrogation techniques do not amount to the intentional infliction of severe physical or mental suffering (the torture standard) based upon the CIA?s own finding that these techniques don?t cross that line. But that is precisely the legal question the CIA (purportedly) is posing to the OLC: Do the interrogation techniques violate the anti-torture statute?

Presumably, the OLC cannot answer the legal question by relying upon the CIA?s own determination that these techniques do not violate the torture statute. That is, however, exactly the analysis in the torture memos. This circularity is explicit in the following passage (March 10 memo), opining on the combination of sleep deprivation with other techniques:

This possibility [that sleep deprivation reduces pain tolerance] suggests that use of extended sleep deprivation in combination with other techniques might be more likely than the separate use of the techniques to place the detainee in a state of severe physical distress and, therefore, that the detainee might be more likely to experience severe physical suffering. However, you [CIA] have informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivation with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute ?severe physical suffering? within the meaning of sections 2340-2340A.

To summarize the above passage: the OLC concluded?as a legal matter?that the CIA?s combination of techniques does not violate the torture statute based upon the CIA?s assurance that it combines the techniques in a way that does not violate the torture statute. It doesn?t get more circular than that.

All of the recently released memos reason in this circular fashion. As the memos acknowledge, ?there is no evidence? about the effect of combining these techniques. (Sleep deprivation studies exist, but, for obvious reasons, no studies examine the combined effects of sleep deprivation with waterboarding.). The OLC lawyers admit: ?We don?t have any body of experience, beyond the CIA?s own experience with detainees, on which to base an answer to this question.? (March 10 memo).

Nonetheless, the OLC lawyers go on to conclude that ?we do not believe that the use of the techniques in combination as you have described them would be expected to inflict ?severe physical or mental pain or suffering? within the meaning of the [anti-torture] statute.?

This ?legal? conclusion, needless to say, cannot be drawn in the absence of any evidence about the effects of these techniques?but the OLC lawyers were undeterred by the complete lack of a factual basis for their finding.

On what grounds, in the final analysis, did OLC lawyers draw their ?legal? conclusion that the specified interrogation practices did not violate the torture statute? The assurances of the CIA that 1) their interrogation practices did not inflict ?severe suffering;? 2) interrogators were carefully trained and monitored to adhere to the limits (never mind that an IG report revealed that the waterboarding limits were exceeded); and 3) medical personnel were present during the interrogations?that?s the entire the basis for the OLC?s legal approval. When drawing their legal conclusions, rendering their purportedly independent legal assessment of whether the techniques violated the anti-torture statute, the OLC lawyers relied solely upon representations by the CIA.

Let me correct that last statement. The one independent evidence Bybee and Bradbury pointed to was that none of the many soldiers who underwent SERE training (waterboarding specifically) suffered permanent damage from the experience. Bybee and Bradbury admit that training circumstances are wholly different from that of a prisoner being waterboarding (while threatened by the investigators that they will ?do what it takes? to get information); nevertheless, they suggest, it provides a basis to think that waterboarding does not rise to the level of torture. [Reality check: The May 5 memo (page 37) acknowledges that the trainees were waterboarded once or twice at most; by comparison, one prisoner was waterboarded 83 times in one month, and another prisoner was waterboarded 183 times in one month.] The suggestion that SERE training exercises in any way bear on the suffering of prisoners subjected to these interrogation techniques is so patently absurd that it does not merit a response.

This was not ?good faith? legal analysis by OLC lawyers. It did not even qualify as ?legal analysis.?

The empty circularity of the arguments in the latest batch of torture memos exposes what has long been suspected but can now be confirmed: These memos were rubber stamp approvals for CIA interrogators?get out of jail free cards?issued by an obliging cadre of OLC lawyers.

In an unintended irony, the most honest statement in the OLC memos, which were addressed to the CIA, was this standard closing line: "Please let us know if we may be of further assistance."

Full post as published by Balkinization on April 19, 2009 (boomark / email).