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In part 1, I outlined four categories of problems with Bybee's reasoning. In this piece, I'd like to tackle his (and CIA's) reliance on the use of these tactics in other contexts, most frequently as part of military counter-interrogation training.
In the first portion of the memo, pages 1-6, Bybee outlines some evidence CIA has provided him on the use of these techniques, in terms of the potential harm they cause. The premise of this is sound, but it falls down in Bybee and CIA's reliance on it, because in fact the evidence they're able to gather is far too scattered and in most cases, not nearly applicable enough for any surety as to the safety and harmlessness of these tactics.
Bybee primarily relies on the experience of the military's Survival, Evasion, Resistance and Escape (SERE) training program, where (voluntary members of the military) are put through a POW-camp escape training exercise, involving recapture and subsequent interrogation by a hostile government power. Inside an analysis of Bybee's use of this.
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I'll skip Bybee's presentation of the SERE evidence on pp5-6, to the end where he explicitly makes claims about its utility in ratifying CIA's proposed course of interrogation, it's really the meat of this claim which suffuses the whole document:
As we indicated above, you have informed us that your proposed interrogation methods have been used and continue to be used in SERE training. It is our understanding that these techniques are not used one by one in isolation, but as a full course of conduct to resemble a real interrogation. Thus: the information derived from SERE training bears both upon the impact of the use of the individual techniques and upon their use as a course of conduct. You have found that the use of these methods together or separately, including the use of the waterboard, has not resulted in any negative long-term mental health consequences. The continued use of these methods without mental health consequences to the trainees indicates that it is highly improbable that such consequences would result here, [...] (pp17-18)
The screamingly obvious problem is that SERE training is undergone by volunteers who know they won't be killed or otherwise maimed in the process. They know it will end, they know it is controlled and that they have rights. They are not living in the legal null zone gulag of a secret prison, held by a hostile foreign government which regards them as not having any rights whatsoever. The psychological difference there is kind of important, no? In fact, one of the 2005 Bradbury memos notes exactly this problem on page 6:
[...] we note at the outset an important limitation on reliance on that experience. Individuals undergoing SERE training are obviously in a very different
Situation from detainees undergoing Interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training.
The inclusion of this passage in 2005 was no doubt prompted by the revelation in the footnote to page 13, which notes the DoJ Inspector General was critical of the use of the SERE experience as a data point for the purported benign nature of these techniques.
Additionally, it turns out that CIA was not accurate in its assessment of the supposed safety of these techniques even as applied in SERE training. See here for an excellent rundown of the evidence that SERE training is in fact more harmful than CIA and DoJ have claimed. In particular, the 4.3% of SERE subjects requiring counselling as reported on page 5 appears to be a cherry picked statistic. However, this appears to be more in the realm of CIA's deceit in presenting OLC a tendentious selection of the facts.
Bybee's fault here, lies more in simply taking this evidence at face value and making no independent effort to verify it. After all, the legal definitions hinge a great deal on the real world effects these techniques have on a person, and it doesn't strike me as great lawyering to rely on your client to present the relevant evidence where that evidence can be gleaned from other sources. Bybee is intentionally playing a game of "my analysis rests on what you say being true" which is part of the deception here (and why I am not inclined to be soft on the CIA, nor do I find compelling the theory that CIA asked for these memos as a way to make the White House stop pressuring them to get tougher with the detainees). Bybee's responsibility to provide sound legal advice should prompt him to seek out his own reading of the empirical evidence on these techniques.
The approach is flawed from the start, but that CIA had to cherry pick the evidence about psychological harm done by a training program is a pretty big clue the whole exercise is fundamentally dishonest.
Then there is this:
You have also informed us that you have: reviewed the relevant literature on the subject, and consulted with outside psychologists. Your review of the literature uncovered no empirical data on the use of these procedures, with the exception of sleep deprivation for which no long term health consequences resulted. The outside psychologists with whom you Consulted indicated were unaware of any cases where long-term problems have occurred as a result of these techniques. (p18)
So now we have the classic fallacy that the absence of evidence is evidence of absence. Of course there's no empirical data on these techniques. That sort of thing has been forbidden in psychology since Milgram. The standard here is not that us do-gooder civil rights types have to show why these techniques are safe for use, but that the government has to show why they are defensible and acceptable. What a surprise that Johns Hopkins or Harvard hasn't done a double blind study on locking insect-phobic people in confined spaces with centipedes. That's a clue this endeavour isn't on solid footing.
The last serious problem in Bybee's reasoning here is revealed again in the page 13 footnote about the inspector general's complaints in Bradbury's 2005 memo linked above:
In most applications of this technique, including as it is used in SERE training, it appears that the individual undergoing the technique is not in fact completely prevented from breathing, but his airflow is restricted by the wet cloth, creating a sensation of drowning, [...] for purposes of our analysis, however, we will assume that the individual is unable to breathe during the entire period of any application of water during the waterbording technique,
From Bybee's 2002 memo though:
With respect to the waterboard, you have also orally informed us that the Navy continues to use it in training.
So similar to the flaw in the SERE evidence above, CIA has kept plausible deniability by not putting its claims about the Navy's use of waterboarding in writing, so that the discrepancy in techniques could be easily spotted. I don't actually think even the Navy's slightly tamer version of it is any less torture, but that CIA is playing this sort of game is not the sign of a clear conscience. This may also have been done to protect Bybee, by having him endorse waterboarding based on a flawed understanding of what the Navy does versus what CIA was doing to people.
As a last note on this subtopic, I find it weird that they always refer to "the waterboard" much like older people seem to say "the Congress" or Bush's famous "the Google." Not sure what that's about. |
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