Approval of Torture under the CIA’s Counter-Terrorist Program
CIA Standard and Enhanced Interrogation Techniques
Prior to 9/11, CIA agents were permitted to use a number of ‘Standard Interrogation Techniques’ (SITs) during questioning of terror suspects. These included sleep deprivation up to 72 hours, continual use of light or darkness in a cell, loud music, and white noise. From late 2001, the CIA tasked an independent contractor psychologist, with experience of the US Air Force’s Survival, Evasion, Resistance, and Escape (SERE) training program, to research the resistance of Al Qaida suspects to interrogation techniques. The psychologist, in collaboration with a Department of Defense psychologist, developed a set of eleven more aggressive ‘Enhanced Interrogation Techniques’ (EITs) that they recommended for use in interrogations.
Meanwhile, in March 2002, Abu Zubaydah, a so-called ‘High Value Detainee’ (HVD) was captured in Pakistan and was being interrogated by the CIA using the SITs.
In July 2002, the CIA began to brief selected US policymakers on the proposed EITs. In the same month, the CIA’s Office of General Counsel wrote to the US Department of Justice Office of Legal Counsel (OLC), seeking permission for use of the EITs. The justification for their use, it was argued, was that Abu Zubaydah was proving resistant to the SITs. On being advised that the 11th technique would delay the legal review of the other ten, the CIA stated that it was eliminated as an option, and permission was sought only for use of the first ten techniques. (The nature of the 11th technique has never been declassified).
The ten approved techniques, along with a brief description provided by the CIA to the OLC, were:
The attention grasp
Consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator.
The detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.
The facial hold
Used to hold the detainee’s head immobile. The interrogator places an open palm on either side of the detainee’s face and the interrogator’s fingertips are kept well away from the detainee’s eyes.
The facial insult or slap
The fingers are slightly spread apart. The interrogator’s hand makes contact with the area between the tip of the detainee’s chin and the bottom of the corresponding earlobe.
The detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours.
Confinement with insects
Involves placing a harmless insect in the box with the detainee
The detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet.
May include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45 degree angle.
Will not exceed 11 days at a time.
Involves binding the detainee to a bench with his feet elevated above his head. The detainee’s head is immobilized and an interrogator places a cloth over the detainee’s mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation.
Office of Legal Counsel Approval of Enhanced Interrogation Techniques (EITs)
On behalf of the OLC, Jay Bybee, in a classified memo, approved all of the ten EITs for which the CIA had sought approval (listed above) on 1 August 2002, albeit with some restrictions. For example, confinement in larger spaces should not exceed 18 hours, or 4 hours for smaller spaces, and sleep deprivation should not last longer than 11 days at a time.
Bybee sought to offer an interpretation of what was meant by the term torture, concluding that ‘Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering whether mental or physical’. He also concluded that the acts must be of an ‘extreme nature’ and that ‘certain acts may be cruel, inhuman, or degrading, but will not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture’. His understanding of what it would mean to inflict pain of the ‘requisite intensity’ was as follows:
Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g. lasting months or even years.
Bybee’s judgment was based, in part, on the work of the two psychologists who had developed the EITs. One of their tasks had been to investigate the long term psychological effects resulting from the SERE methods among US military personnel who had undergone SERE training, including water boarding. But the comparison between its use on military personnel in SERE training and on actual detainees is flawed. In training exercises the military personnel know that the experience, however traumatic, will be short-lived, that doctors are on hand, that they are not going to be killed, and that they have access to legal counsel. Actual detainees, by contrast, are deliberately disoriented, in many cases in the ‘War on Terror’ have been held for months if not years on end, do not know if the practice is going to kill them, have no knowledge of whether they will be treated medically, and crucially, have no access at all to the outside world, including legal representatives. They are definitely not made aware of measures that are being taken to avoid killing them. Furthermore, the above techniques were used after detainees had been subjected to many SITs. None of this was lost on Bybee, who in his memo, acknowledged that the detainee would not be made aware of any of the ‘precautions’ that his captors were taking to ‘ensure the subject’s mental and physical safety’, and that the use of the water board ‘constitutes a threat of imminent death’ since it ‘creates in the subject the uncontrollable physiological sensation that the subject is drowning’.
Under the Convention Against Torture there can be no derogation from the prohibitions set out in the Convention. Bybee’s reliance on his reinterpretation of a single statute of US law as a means of providing cover for US personnel in the event that they did violate the Convention was flawed. It could in no way counter the substantial body of international law that prohibits torture, inhuman and degrading treatment in all circumstances. It is difficult to see how Bybee’s counsel would offer any real protection to agents of the CIA who had been complicit in the sanctioning and use of torture in the ‘War on Terror’, a conclusion reached by the CIA Inspector General in his 2004 report.