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The Calculus of Torture

Yesterday, Steven Bradbury, the Justice Department official who heads up the Office of Legal Counsel, testified before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. We posted video of him explaining how the waterboarding practiced by the CIA was miles away from that practiced by the Spanish Inquisition -- it was a much more careful and controlled practice (there's no jumping on the victim's stomach or vomiting of blood).

But that wasn't even the most crucial part of his testimony. Bradbury writes the legal opinions that tell the administration how far they can go. And when he (and earlier John Yoo) advised the administration that it was legal to waterboard prisoners, they had their reasons.

With regard to waterboarding, Bradbury explained with chilling sangfroid his legal reasoning. We've provided a full transcription of his answers below. It's the most detailed description of the Justice Department's analysis with regard to a particular interrogation technique ever given.

If you read on, you'll learn that "something can be quite distressing or uncomfortable, even frightening, but if it doesn't involve severe physical pain and it doesn't last very long, it may not constitute severe physical suffering." And you'll also learn that while the victim from waterboarding might panic from the sensation of drowning, the real question is whether "those factors cause prolonged mental harm." Bradbury concluded that waterboarding does not.

The Military Commissions Act of 2006 drastically changed the equation, Bradbury testified, and the Department hasn't yet made an analysis of whether waterboarding is legal under its requirements. So for now it's off the table.

First, Bradbury discussed the torture statute under questioning by Rep. Trent Franks (R-AZ):

FRANKS: Is it your testimony that waterboarding is indeed not torture and if so what, briefly, would you offer as the difference?

BRADBURY: Let me say, first of all, let me make it very clear as I tried to do in my testimony there are a lot of laws that apply here beyond the torture statue and waterboarding has not been used by the CIA since March 2003. There's been no determination by the Justice Department that its use today would satisfy those recently enacted laws, in particular the Military Commissions Act, which has defined new war crimes for violations of Common Article 3, which would make it much more difficult to conclude that the practice were lawful today.

But under… strictly speaking, just under the anti-torture statute, as we've said in our December 2004 opinion, there are three basic concepts: severe physical pain, severe physical suffering, and severe mental pain or suffering, which is specifically defined in the statute. And if something subject to strict safeguards, limitations, and conditions does not involve severe physical pain or severe physical suffering… And severe physical suffering, we said in our December 2004 opinion, has to take account of both the intensity of the discomfort or distress involved and the duration, and something can be quite distressing or uncomfortable, even frightening, but if it doesn't involve severe physical pain and it doesn't last very long, it may not constitute severe physical suffering. That would be, that would be the analysis.

Under the mental side, Congress was very careful in the torture statute to have a very precise definition of severe mental pain or suffering. It requires predicate conditions be met and then, moreover, as we said in our opinion in December 2004, reading many cases, court cases, under the Torture Victims Protection Act, it requires an intent to cause prolonged mental harm. Now that's a mental disorder that is extended or continuing over time and if you've got a body of experience with a particular procedure that's been carefully monitored that indicates that you would not expect that there would be prolonged mental harm from a procedure, you can conclude that it's not torture under the precise terms of that statute.

The last thing on the torture statute I'd like to say, though, Mr. Chairman, is that the Attorney General has made it clear that if - he's essentially taken, he's taking ownership of this issue in the sense that if there were any proposal to use this technique again, the question would have to go to the Attorney General and he would personally have to determine that it satisfies all the legal standards, including the torture statute. And by the way he's not simply going to rely on past opinions that may have addressed it years ago, he would make an independent and new judgment today as to whether he agrees with that conclusion.

And later in the hearing, he was questioned by Rep. Steve King (R-IA):

KING: But I think also some statements that have been made here need to be clarified. One is the statement that we know what waterboarding is. I don't think there's a consensus on this committee as to what waterboarding is. I think we understand from the testimony what some of the historical examples of the more ancient versions of waterboarding are, but I go back to a statement made earlier by the chairman that "as your lungs fill with water," and I would ask Mr. Bradbury, are you knowledgeable about any activity that would include a modern version of waterboarding in which the subject's lungs would fill with water, literally?

BRADBURY: No, I'm not.

KING: And I am not either. And so I just point that out to illustrate that we don't have a consensus on what we see as waterboarding. You did illustrate how it was used by the Japanese in World War Two…..

KING: But I'm interested in one piece of this subject. You went into the details of it to some degree. If your lungs don't fill with water and the fear definition that you gave, how does one define how this is torture under that definition if there isn't a physical pain that's involved and if the lungs aren't filling with water, could you go back to that fear factor or the mental pain factor, the fear definition that you gave, Mr. Bradbury?

BRADBURY: Yes, Mr. King. Briefly, there is a specific definition in the anti-torture statute of severe mental pain or suffering and it requires certain conditions, certain prerequisites or factors be present, and that those factors cause prolonged mental harm. And one of the factors, the one that raises most questions with respect to this particular procedure, is the question of whether it involves a threat of imminent death. And what's pointed to there is the physiological sensation that's created, physiological or mental sensation, almost like a gag urge of drowning. And the question is whether that's a threat of imminent death.

And as I would understand it, as I think the chairman may have suggested, it's a reaction that even if you're involved in training, as I understand it, the subject would have. So whether or not you know that it's not really involving drowning you have this physiological reaction and that's the acute nature of it. And if that is a threat of imminent death then you need to ask, is it the kind that would be expected to cause prolonged mental harm? That is, an ongoing or persistent mental disorder as a result of that? That's what the cases have focused on with respect to the Torture Victims Protection Act and that would be the… the analysis would turn on that.

KING: Thank you. Just a short concluding-

BRADBURY: And may, I'm sorry, Mr. King, may I point out, though, I don't want the committee to lose sight, there are new statutes on the books and one of them is a new statute that cruel and inhuman treatment, war crime, added by the Military Commissions Act in the fall of 2006. That's a crime that took this definition from the torture statute and changed it. It eliminated the prolonged mental harm requirement and made it serious, but non-transitory mental harm, which need not be prolonged. That's a new statute, became effective in the fall of 2006, the Department has not analyzed this procedure under that statute and as I think you can tell from the change in the language that statute would present a more difficult question, significantly more difficult question with respect to this particular….

KING: That language doesn't sound vague. Are you aware of any version of waterboarding that's currently practiced where there has been a result of death?

BRADBURY: I am not.

KING: That's my point. Thank you Mr. Chairman, I yield back.


Comments (36)

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With a h/t to Minnesotachuck over on emptywheel at FDL, Seton Hall Univ. Law School just released a report revealing that over 24,000 detainees at Gitmo were interrogated and that every single interrogation was videotaped.

I think Bradford may have a little more 'splainin to do once Congress finds out about this!

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Besides the link not working, what dose this have to do with waterboarding: Is it your assertion that some of those interrogations did include waterboarding; and that there are tapes of waterboarding? This doesn't appear to be news: We don't need tapes of waterboarding when DOJ OLC under oath says there are policies to oversee the waterboardings which did occur. Arguably, we don't need evidence of war crimes when DOJ OLC has admitted to writing memos which "legalize" war crimes; and the WH Counsel reports that they have read interrogation summaries from prisoner interrogations that relied on the DOJ OLC memorandas.

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I guess I'd like to hear one of these torture-fans explain how waterboarding helps an interrogation that does not lapse into them defining it in a way that is just as legal as torture. "Well, he starts to talk because he thinks hes going to die", or, "once he knows that the only way to make it stop is to talk, he talks. What do you mean why does he want it to stop?"

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Slight correction, the report probably says there were 24,000 *interrogations,* not "detainees."

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Instead of torture fans, I'm going to start calling them torture whores. That would apply to every Senator and Congressman who voted against the bill to ban waterboarding, and of course Bush/Cheney/Addington/Yoo/Bradbury/Mukasey/McConnell/Hayden and every segment of the intelligence community that allows its agents to violate the Geneva conventions.

Let's try it out on him and see what he thinks then.

I want to change that recommendation, Let's send him to Syria and let them try it out on him. No guarantee that he is "ok" and see what he thinks afterwards, if there is an afterwards.

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Ah, Steve King: Tancredo's Mini-Me, a man who thinks that living near Hispanics is torture, but waterboarding isn't. What utter filth he is.

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Steve King--trying to out-Tancredo Tancredo!

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Comment was truncated. Can't leave McConnell, Hayden, CIA interrogators off the list of torture whores. And who was that General they brought over from Gitmo to Abu Ghraib in order to "Gitmo-ize" Abu Ghraib? Him, too.

BTW, if that officer did a good enough job Gitmo-izing, maybe every single interrogation at Abu Ghraib was also videotaped. How much have the Intelligence committees been covering up?

It's unclear to me why it isn't possible for any policeman to arrest anyone who advocates or practices such interrogations. Every other country except the usual suspects treats waterboarding as torture. Torture is a violation of the law. It's really quite simple. Why is it so difficult to understand? If any of our soldiers were waterboarded, does anyone think that we would not conclude that such interrogations were torture in a court of law, and prosecute the torturers to the full extent of the law, both criminal and civil?

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Anyone else having flashbacks of the movie A Clockwork Orange?

And another thing, I find it absolutely mind-boggling that Jose Padilla got a 20 year sentence for being denied his constitutional rights and that no one seems to give a shit. What has happened to this country?

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How did this man get a law licence? Or has anybody inquired if he indeed has one?
Spin may be a legal tool, but double,triple spin are just cover for the illegal decisions that he made over the years justifing the scheme of total judicial control.
This man should be peeking out from behind bars not spinning for points.

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How did this man get a law licence? Or has anybody inquired if he indeed has one?
Spin may be a legal tool, but double,triple spin are just cover for the illegal decisions that he made over the years justifing the scheme of total judicial control.
This man should be peeking out from behind bars not spinning for points.

Homelesseus - What has happened? The country got into a bad relationship a few years back and it hasn't been the same since.

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We should all call or email and thank him. He needs to know that we support Democrats who don't cower in fear before terrorists, foreign or domestic. His email page is apparently only intended for his district's constituents, but here's his chief of staff's.

perry.finney2@mail.house.gov

Homelesseus,

You can thank Judge Marcia G. Cooke that twenty years is all Jose Padilla got. The prosecutors wanted a life sentence.

Cooke is an African American nominated to the bench in 2003 by GWB.

Calling Malcolm Nance! Since Re. King believes, "I don't think there's a consensus on this committee as to what waterboarding is," there's a really straightforward way for them to find out–go through it themselves.

Malcolm Nance is an expert in it. He's taught people interrogation techniques, and he's waterboarded everyone under his tutelage. He's been waterboarded as well–he knew it was necessary to be able to teach this form of torture. (And yes, he says it's torture.)

So it's time to have a nice up-close-and-personal demonstration, with all the members of Congress who are unclear about what waterboarding is, and everyone can gather 'round for the best view.

Volunteers, gentlemen and gentlewomen?

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That general would be Geoffrey Miller, I think.

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Does McCain's behavior today reflect "prolonged mental harm"? And if it doesn't, are we to conclude that what he experienced in Vietnam was not torture?

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Geneva prohibits all abuse. Whether something is or isn't torture, distressing, or severe is meaningless drivel. Geneva is clear. DoJ OLC's assertions argue over irrelevant standards which they know or should know are allegedly frivolous arguments. If proven these DoJ OLC legal arguments are frivolous, the underlying alleged war crimes would attach to DoJ OLC.

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Here is an ACLU FOIA listing of deaths in Iraq and Afghanistan during incarceration up to 2005. http://action.aclu.org/torturefoia/released/102405/

Caution: graphic.

So what happens if you waterboard a person who has TB, advanced cardio problems, a diabetic (so they toss their insulin while being interrogated), and so on? Are those torture?

I wish Goldsmith (who is no white knight or saint) had stuck around to straighten out this mess.

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My daughter was recently charged with assault after throwing a COLD cup of coffee (and they stated COLD in the report!) at her "boyfriend" after he jumped out of her car, on the freeway, with her laptop, cellphone, etc, and started running in circles around her car.

He suffered NO damage, emotional or physical (besides what he obviously came in with).

There have been people, in this country, who have been found guilty of assault for purely VERBAL altercations.

If Bradbury and his cronies don't want to call it torture, well then fine. Let's start with charging them all with assault, inflicting emotional distress, and all of the other crimes that clearly being broken during their "enhanced" interrogations. Then we can let a jury decide how much time they should do for their crimes.

One thing is certain - a CRIME is being committed. Let's hear them try to argue that waterboarding, etc. does not rise to at least the level of assault.

P.S. - The whole "CIA only tortured 3 people" line is a red herring. We contracted torture out to CACI in Iraq, the reprehensible regimes that formed the true "coalition of the willing", and more than 100 detainees at GITMO are supposed to have been "enhanced" by someone, we just don't know which private company we contracted it out to. YET.

And then there's these sorts of stories, dribbling in from around the country - http://www.nytimes.com/2006/04/03/nyregion/03detain.html?partner=rssnyt&emc=rss

In November 2004, federal officials who oversee the detention of immigrants facing deportation said they would no longer send detainees to jails that used dogs to patrol inside. That decision by the Department of Homeland Security came a day after National Public Radio broadcast an investigative report saying that the dogs had been used over a three-year period to intimidate, attack and, in at least two cases, bite immigrant detainees in the Passaic County Jail.

NICE! (I don't know about you, but I think it would cause ME to have lasting psychological damage!)

The Reich Wing should not be allowed to so narrowly "define" the torture debate in this way. They are trying to shove an elephant through a needle on this one, and the only way they'll be successful is if the Dems decide to slap on a ton of lube to ease its passage.

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As for the 3 CIA torture cases - if there were only 3, then why the need for this -
http://www.washingtonpost.com/wp-dyn/content/article/2008/02/11/AR2008021100572.html?sub=AR

FBI and military interrogators who began work with the suspects in late 2006 called themselves the "Clean Team" and set as their goal the collection of virtually the same information the CIA had obtained from five of the six through duress at secret prisons.

Whoops!

That means a MINIMUM of 5 detainees who were tortured BY THE CIA!!

A list should be compiled of all of the different "admissions" and "revelations" by the torturers, as well as reports by third parties detailing the different persons that are KNOWN to have suffered at their hands.

Much like the aftermath of WWII, there will come a day when the world will ask, "Where were all of the GOOD Americans?"

I hope that when that time comes, that the question will be irrelevant, as it will be known that Americans finally did the right thing and held a domestic version of the Nuremberg trials, a modern version of the Truman Comittee, and a handful of RICO charges for good measure.

The Bush Administration is nothing more than a criminal enterprise being run out of the White House.

It is time for all good Americans to DEMAND an end to the blight that is rotting our country from the inside, out.

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As for the 3 CIA torture cases - if there were only 3, then why the need for this -
http://www.washingtonpost.com/wp-dyn/content/article/2008/02/11/AR2008021100572.html?sub=AR

FBI and military interrogators who began work with the suspects in late 2006 called themselves the "Clean Team" and set as their goal the collection of virtually the same information the CIA had obtained from five of the six through duress at secret prisons.

Whoops!

That means a MINIMUM of 5 detainees who were tortured BY THE CIA!!

A list should be compiled of all of the different "admissions" and "revelations" by the torturers, as well as reports by third parties detailing the different persons that are KNOWN to have suffered at their hands.

Much like the aftermath of WWII, there will come a day when the world will ask, "Where were all of the GOOD Americans?"

I hope that when that time comes, that the question will be irrelevant, as it will be known that Americans finally did the right thing and held a domestic version of the Nuremberg trials, a modern version of the Truman Comittee, and a handful of RICO charges for good measure.

The Bush Administration is nothing more than a criminal enterprise being run out of the White House.

It is time for all good Americans to DEMAND an end to the blight that is rotting our country from the inside, out.

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A reminder -

I keep hearing people, both in government and out, throwing numbers around about the amount of money we are spending each month in Iraq.

$3 billion, $6 billion, $9 billion, $12 billion. But no one seems to be aware of the TRUE COST (financial only, at this point), -
http://thinkprogress.org/2007/12/27/stevens-15-billion/

In a little-noticed Senate floor speech on December 18, Sen. Ted Stevens (R-AK), the ranking Republican on the Appropriations defense subcommittee, revealed that the cost of the wars in Iraq and Afghanistan “IS APPROACHING $15 BILLION A MONTH!!!!!!!!” Stevens made his comment while arguing for adding $70 billion. (Emphasis added)

This is a number that should be shouted from the rooftops, every chance that a TRUE patriot gets near a microphone.

$15 BILLION!
$15 BILLION!
$15 BILLION!
$15 BILLION!
$15 BILLION!

As people start letting it sink in that Shrub is cutting things like RIF (Reading is Fundamental) which distributes 16 million books a year to needy and deserving children for a whopping $25 million, ANNUALLY! That he wants to deny healthcare to American children for less than 2 MONTHS of what it costs to stay in Iraq, and he whines about "entitlements" breaking the government, while spending an outrageous $1 TRILLION dollars in warmongering this year ALONE.


$15 BILLION!
$15 BILLION!
$15 BILLION!

What about John McCain and his 100 years in Iraq that he thinks we won't mind? Does he REALLY anticipate spending such a major chunk of our hard-earned taxpayer dollars (Thanks again Shrub - for reminding us on FOX Sunday that the rich don't pay their taxes - they just hire accountants and stick you with the bill. (Has he lost what's left of his ever-lovin' mind?!?))


$15 BILLION!
$15 BILLION!
$15 BILLION!

It should be the mantra of the progressives in this country as well as a rallying cry for the Democratic (not DEMOCRAT!) party.


$15 BILLION!
$15 BILLION!
$15 BILLION!

If "tax and spend" worked for Reagan, $15 BILLION! should seal the deal for 2008.

Oh - and don't forget to run his "rich don't pay taxes" clip over and over and over and over and....

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So... I am wondering... if the CIA decided to threaten a suspect with a frontal lobotomy, then went ahead and did one under anesthesia, would that constitute torture, realizing that after the lobotomy, the person would no longer be mentally agitated, angry, fearful, etc.?

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Here is a summary of the international and US laws concerning torture:

http://www.hrw.org/english/docs/2004/05/24/usint8614.htm

I'm curious: Torture resulting in death can get the the death penalty for those involved, according to 18 U.S.C. § 2340A, 1994. Was King fishing when asking Bradbury the subject question, or what?

Since Bush and Gang cannot be trusted about anything, one wonders what else is being lied about, covered up, protected...

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Everybody who has been through waterboarding and commented on it publicly has said that, if subjected to it again they would abandon any principle or loyalty they held dear to stop the torture. Some have said that the credible threat of waterboarding would be enough. Sounds like permanent mental harm to me.

The torture whores have sold their souls to the devil to get arguments that don't even hold up under their own twisted terms.

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Another thing to note:

These tactics are being done to people who have NOT been tried or found guilty of any crime. It is just assumed (or not assumed) that they are actually guilty terrorists.

Remember also, that general at Gitmo who was beaten and killed. The interrogators were never tried for torture, although, if he were alive today he would probably agree that it hurt tremendously before he died.

Everyone under this administration knows full well that rule of law and rules of war have been suspended while Bush fights his holy war.... IMHO

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Updated link to the Seton Hall Univ. Law School's report:

http://law.shu.edu/news/guantanamo_reports.htm

It was moved from their home page inside to the web page which serves up all of their reports on Gitmo, of which there are several. This latest report is actually titled as follows:

"Captured on Tape: Interrogation and Videotaping of Detainees in Guantánamo (02/07/08)."

It's a 900 KB PDF download but only 40 pp. long, a valuable addition to the history of these torture whores. Don't ruin a sunny weekend afternoon reading it, though.

The NYTimes has a related AP story today, Feb. 16, in which an active duty interrogator denounced waterboarding and other torture as useless and explained in great detail how entirely non-coercive techniques had been directly responsible for obtaining battlefield intelligence that had been immediately useful in wiping out a Taliban reinforcement in Afghanistan.

These torture whores are preventing us from using the effective, non-coercive, techniques to produce the combat intelligence that our military needs.

...that ACLU autopsy page, that leads to many, many other pages. What a dreadfully oppressive presence on my screen.
And the mazes it leads into, and the stench. Metastasizing.
Thank heaven for all the lifting and tugging at corners of curtains. With so much admirably penetrating intelligence and moral will at work for illumination and justice, It’s still possible to hope democracy may find its footing.
Then again, there’s the awful irony, looking at that defense spending, that the US may be executing the same move it was so pleased to have tricked the USSR into; spending more than it can afford on militarization, leading to its collapse.


...that ACLU autopsy page, that leads to many, many other pages. What a dreadfully oppressive presence on my screen.
And the mazes it leads into, and the stench. Metastasizing.
Thank heaven for all the lifting and tugging at corners of curtains. With so much admirably penetrating intelligence and moral will at work for illumination and justice, It’s still possible to hope democracy may find its footing.
Then again, there’s the awful irony, looking at that defense spending, that the US may be executing the same move it was so pleased to have tricked the USSR into; spending more than it can afford on militarization, leading to its collapse.


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TPM reports there was a policy that implemented prisoner abuse, which is an alleged war crime: "[I]t was a much more careful and controlled practice (there's no jumping on the victim's stomach or vomiting of blood)." Geneva bars all abuse. Whether something is or isn't "torture" is meaningless. As described by DOJ OLC, waterboarding allegedly meets the Geneva standard for illegal POW abuse.

There is a legal basis to bring indictments against the DOJ OLC Staff, WH counsel, and other legal officers instrumental in implementing this alleged unlawful policy. The alleged policy is what the Justice Trial prosecuted against judicial officers. Nuremberg is precedent for conducting a war crimes trial against DOJ OLC staff counsel who have allegedly attempt to enforce illegal statutes, policies, or Presidential executive orders; or have otherwise refused to recuse themselves from these alleged war crimes policies.

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The pdf is here: http://law.shu.edu/news/guantanamo_report_final_2_08_06.pdf

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