These highly educated men and women are all around us.
‘He thought of how the world organises its own affairs so that civilisation every day commits crimes for which any individual would be imprisoned for life. And how people accept this, either by ignoring it and calling it current affairs or politics or wars, or by making a space that has nothing to do with civilisation and calling that space their private life.’
Richard Flanagan, The Narrow Road to the Deep North
17
The Lawyers of Washington
In 2005 several documents were, for a short time, put into the public domain.fn1 And in this narrow window I downloaded the documents on which this chapter is based. The memoranda – at least the four I’ve been able to read in detail, others were heavily redacted – were sent by two lawyers working in the office of the US Attorney General, to John Rizzo, principal counsel for the CIA between August 2002 and May 2005. Over 124 pages, they detail the internal debates between senior legal officials in the Bush administration as to exactly what constitutes ‘torture’, what ‘enhanced interrogation techniques’ might be permissible, as well as philosophical discussions relating to the subjectivity of ‘pain’ and the meaning of ‘severe mental pain and suffering’. The legal advice these men offered later shaped the treatment of suspects at the Guantánamo and Abu Ghraib detention centres.
This is one of the men involved:
Jay Bybee studied economics at Brigham Young University, graduating in 1977, subsequently gaining his law-school qualification from the J. Reuben Clark Law School at BYU. He began working in the US Department of Justice in 1984, rising to become Assistant Attorney General, leading the Office of Legal Counsel in 2001. He married Dianna Greer, a teacher, in 1986, and they had four children. He is active in the Church of Jesus Christ of Latter-day Saints, more commonly known as the Mormons. Between 1973 and 1975 he volunteered on a mission for the Church in Santiago, Chile – his time there coinciding precisely with the American-backed coup that destroyed Allende and ushered in the early years of Pinochet’s military dictatorship. Today he works as a judge on the Ninth Circuit Court of Appeals.
And this is the other man:
Steven Bradbury gained his first degree, in English, from Stanford in 1980, going on to further studies at the University of Michigan Law School, where he gained his graduate degree in 1988. He worked primarily in private law practice until joining the Office of Legal Counsel in 2004, where he was appointed Principal Deputy Assistant Attorney General. He is married to Hilde Kahn, they have three children, James, William and Susanna. Steven and Hilde are listed as having donated more than $5,000 to the Thomas Jefferson High School for Sciences and Technology, Fairfax, Virginia, fundraising campaign in 2013. Today Bradbury has returned to private practice, and is a partner at the Washington firm Dechert LLP.
*
To spend a couple of hours reading these memoranda is to feel degraded. To feel ashamed of what our societies are capable of. Torture has been in the world for as long as human beings have existed. In early years, even before a word to describe what it was, men would have used violence against each other to get what they wanted. Brutal? Absolutely. More shocking than anything other animals do to each other? Undoubtedly so. But not as appalling as the perversion of a profession that should exist to uphold the rule of law. Not as disgraceful as the cold and clinical exchange of memoranda written by highly educated men, designed to enable suspects (who have never been charged with an offence, nor put before any court) to be tortured by the American government. As you read these documents your mind may return to the senior lawyers we met in Berlin, discussing how to organise the Holocaust by ‘legal means’. There is also a very precise link between the language used to refer to torture in Nazi Germany, and the language used to refer to torture by the American government today. In 1936, Heinrich Müller of the Gestapo (who we last met at the Wannsee Conference) gained authorisation vto implement ‘intensified interrogations’fn2; in 2005, Steven Bradbury of the Attorney General’s office advised on ‘enhanced interrogation technique(s)’.fn3
The following extracts have been taken from four of the memoranda sent between August 2002 and May 2005. Not a word has been changed.
Memo 1: Top Secret [document blacked out – redacted in parts]
Date: August 1st, 2002
From: Jay S. Bybee, Assistant Attorney General
To: John Rizzo, Acting General Counsel of the Central Intelligence Agency
Subject: Interrogation of al Qaeda Operative
You wish to move the interrogations into what you have described as an ‘increased pressure phase.’ As part of this increased pressure phase Zubaydah will have contact only with a new interrogation specialist whom he has not met previously, and the Survival, Evasion, Resistance, Escape (‘SERE’) training psychologist who has been involved with the interrogations since they began. This phase will likely last no more than several days but could last up to thirty days. In this phase, you would like to employ ten techniques that you believe will dislocate his expectations regarding the treatment he believes he will receive and encourage him to disclose the crucial information mentioned above. These ten techniques are: (1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard. You have informed us that the use of these techniques would be on an as-needed basis and that not all of these techniques will necessarily be used. The interrogation team would use these techniques in some combination to convince Zubaydah that the only way he can influence his surrounding environment is through cooperation. You have, however, informed us that you expect these techniques to be used in some sort of escalating fashion, culminating with the waterboard, though not necessarily ending with this technique.
Later in the memo he analyses the legal meaning of ‘severe pain or suffering’ and explains that ‘in order for pain or suffering to rise to the level of torture the statute requires that it be severe’. Having gone through all ten ‘techniques’ outlined above, he concludes that ‘none of the proposed techniques inflicts such pain.’ He describes waterboarding like this:
As we understand it, when the waterboard is used, the subject’s body responds as if the subject were drowning – even though the subject may be well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain. As we explained in the Section 2340A Memorandum, ‘pain and suffering’ as used in Section 2340 is best understood as a single concept, not distinct concepts of ‘pain’ as distinguished from ‘suffering.’ See Section 2340A Memorandum at 6 n.3. The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view inflict ‘severe pain or suffering.’ Even if one were to parse the statute more finely to attempt to treat ‘suffering’ as a distinct concept, the waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.