DOJ Memo Allowed Severe, But Short-Term, Mental Pain in Interrogations

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DOJ Memo Allowed Severe, But Short-Term, Mental Pain in Interrogations

Posted Jul 24, 2008, 12:38 pm CDT
By Debra Cassens Weiss

Newly released documents confirm that a secret Justice Department memo authorized waterboarding by the Central Intelligence Agency in 2002, according to a press release by the American Civil Liberties Union. The memo allowed harsh interrogation techniques causing severe mental pain that is not long-lasting.

The August 2002 Justice Department memo (PDF) was released as part of a Freedom of Information Act lawsuit. The previously undisclosed document concludes U.S. law permits interrogation methods that cause severe mental pain as long as they do not cause “harm lasting months or even years after the acts were inflicted upon the prisoners.” The memo was signed by then-Assistant Attorney General Jay Bybee, now a federal appeals judge.

The memo says the assessment of mental harm should take into account the psychological health of the subject. “The healthier the individual, the less likely that the use of any one procedure or set of procedures as a course of conduct will result in prolonged mental harm,” the memo says.

The memo creates a loophole for interrogators, the New York Times reports, when it asserts an interrogator would not violate the anti-torture law without a specific intent to cause severe pain.

Both the Times and the Associated Press focus on CIA rules mentioned in a third document that require detailed records to be kept of interrogations.

Jameel Jaffer, director of the ACLU's national security project, told AP that if the records are released they could be used by Guantanamo detainees as they face trial before military tribunals.

Large parts of the Justice Department memo are blacked out and the sections that are revealed do not specifically mention waterboarding.

But another document disclosed in the lawsuit indicated that the memo approved certain interrogation techniques, "including the waterboard," for use by the CIA. The August 2004 document (PDF) that mentioned waterboarding was a communication from the CIA to the Justice Department’s Office of Legal Counsel.

The ACLU obtained the memos in a lawsuit before U.S. District Judge Alvin Hellerstein of Manhattan. The judge had conducted an in camera review of the Justice Department memo before ordering its release.

"These documents supply further evidence, if any were needed, that the Justice Department authorized the CIA to torture prisoners in its custody," Jameel Jaffer, director of the ACLU National Security Project, said in a press release. “The Justice Department twisted the law, and in some cases ignored it altogether, in order to permit interrogators to use barbaric methods that the U.S. once prosecuted as war crimes."

Updated on July 25 to include coverage in the New York Times and Associated Press.

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Posted by Craig Albert - 1 month, 1 week, 6 days, 4 hours, 27 minutes ago

The August 2004 document referenced in the article is fascinating. As I read it, it is a nod and a wink authorizing the use of mechanisms that violate the Geneva conventions and the UN Convention Against Torture.

The first paragraph lays out an explanation that the techniques that are being used are useful. It says, “Intelligence gained using the interrogation techniques has saved American lives and property. . . .”

The intro to the second section draws a distinction between laws and policies: It says that “The interrogation of [deleted, probably the initials of an individual] should proceed only with a clear understanding [a few words deleted] of all the legal and policy matters involved with the interrogation techniques, Including: [five items]”

Of the five listed items, It describes three legal matters: a DoJ memo concluding that waterboarding does not violate the Torture Statute, the fact that the Durbin Amendment was not enacted into law, and the fact that Rasul v Bush raised the prospect that there could be future US judicial review of Guantanamo cases (the memo sheepishly called this “possible concerns about . . . judicial review”. It separated the legal matters from two “policy” matters—that our “policy” is to conduct interrogations “consistent with the commitment” made by the US under Art 16 of the UN Convention Against Torture and that our military “policy” is to treat detainees humanely and consistent with Geneva “to the extent appropriate and consistent with military necessity.”

Let me translate. When someone does things that are illegal, that person can be prosecuted. When someone does something that’s contrary to policy, they can theoretically be fired, but (the memo winks) look back at paragraph 1. Violating policy could save American lives and property. You need only look to what happened in the White House when someone violated policy by leaking the information in the Plame affair to see what the consequneces are of violating stated policy.

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