A little later in the memo, Bybee discusses the issue of mental harm caused by waterboarding:
Although the waterboard constitutes a threat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering. See Section 2340A Memorandum at 7. We have previously concluded that prolonged mental harm is mental harm of some lasting duration, e.g., mental harm lasting months or years. See id. Prolonged mental harm is not simply the stress experienced in, for example, an interrogation by state police. See id. Based on your research into the use of these methods at the SERE school and consultation with others with expertise in the field of psychology and interrogation, you do not anticipate that any prolonged mental harm would result from the use of the waterboard … In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture within the meaning of the statute.
Bybee notes that the CIA have consulted interrogation experts, mental health experts and psychologists and a ‘comprehensive psychological profile of Zubaydah has been created’ to determine if the ‘use of the procedures’ will result in prolonged mental harm. He concludes:
Reliance on this information about Zubaydah and about the effect of the use of these techniques more generally demonstrates the presence of a good faith belief that no prolonged mental harm will result from using these methods in the interrogation of Zubaydah. Moreover, we think that this represents not only an honest belief but also a reasonable belief based on the information that you have supplied to us. Thus, we believe that the specific intent to inflict prolonged mental [sic] is not present, and consequently, there is no specific intent to inflict severe mental pain or suffering. Accordingly, we conclude that on the facts in this case the use of these methods separately or a course of conduct would not violate Section 2340A.
There are three terms that stand out to me here – ‘a good faith belief’, ‘an honest belief’ and ‘a reasonable belief’. As if, by using additional adjectives, justification can be found for views that have no faith, no honesty and no reasonableness.
*
Memos 2/3: Top Secret [document blacked out – redacted in parts]
Date: May 10th 2005, 17:50
From: Steven G. Bradbury, Principal Deputy Assistant Attorney General
To: John A. Rizzo, Senior Deputy General Counsel for the Central Intelligence Agency
Subject: Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees.
These two memoranda, sent on the same afternoon from ‘site 15 DOJ’ by Steven Bradbury and constituting a single communication of sixty-six pages, carry on the theme of Bybee’s previous memo, but go into far greater detail about the ‘techniques’ involved and the extent to which they comply with US law. He particularly focusses on how the combination of different interrogation procedures might potentially go over into the legal definition of torture; he is also keen for all participating CIA personnel, particularly interrogators and members of the CIA’s Office of Medical Services (OMS), to be made aware of the care needed in this area. He starts by detailing the first stages in the treatment of detainees:
According to the Background Paper, before being flown to the site of interrogation, a detainee is given a medical examination. He then is ‘securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods’ during the flight. Id at 2. An on-board medical officer monitors his condition. Security personnel also monitor the detainee for signs of distress. Upon arrival at the site, the detainee ‘finds himself in complete control of Americans’ and is subjected to ‘precise, quiet, and almost clinical’ procedures designed to underscore ‘the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread [a detainee] may have of US custody.’ Id. His head and face are shaved; his physical condition is documented through photographs taken while he is nude; and he is given medical and psychological interviews to assess his condition and to make sure there are no contraindications to the use of any particular interrogation techniques.
He also explains that the detention conditions at all CIA facilities include the use of ‘white noise’ and constant light:
Although we do not address the lawfulness of using white noise (not to exceed 79 decibels) and constant light, we note that according to materials you have furnished to us, (1) the Occupational Safety and Health Administration has determined that there is no risk of permanent hearing loss from continuous, 24-hour per day exposure of noise up to 82 decibels, and (2) detainees typically adapt fairly quickly to the constant light and it does not interfere unduly with their ability to sleep. See fax for Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel, [document blacked out – redacted here] (Jan 4, 2005)
On the use of waterboarding, he specifies the time limits in relation to use of this ‘technique’ – only on five days within any thirty-day period, no more than two ‘sessions’ within a twenty-four-hour period, ‘with a “session” defined to mean the time that the detainee is strapped to the waterboard and that no session may last more than two hours’. The maximum length of application of water is forty seconds. Later, he states: ‘We also understand that the waterboard is not physically painful.’ As with Bybee’s comment earlier, at this point even the gentlest pacifist might want to see Bradbury experiencing this for himself, and also exposure to eighty-two-decibel noise for twenty-four hours.
Memorandum 3, sent at the same time, goes into greater detail still. We learn about the use of a further technique – ‘water dousing’ and the need for a medical officer to be present to monitor the detainee for ‘signs of hypothermia’. Here too there are lists of do’s and don’ts:
For water temperature of 41°F, total duration of exposure may not exceed 20 minutes without drying and rewarming.
For water temperature of 50°F, total duration of exposure may not exceed 40 minutes without drying and rewarming.
For water temperature of 59°F, total duration of exposure may not exceed 60 minutes without drying and rewarming.
Technique number two is the use of enforced nudity:
2: Nudity. This technique is used to cause psychological discomfort, particularly if a detainee, for cultural or other reasons, is especially modest. When the technique is employed, clothing can be provided as an instant reward for cooperation. During and between interrogation sessions, a detainee may be kept nude provided that ambient temperatures and the health of the detainee permit. For this technique to be employed, ambient temperature must be at least 68F. No sexual abuse or threats of sexual abuse are permitted … We understand that interrogators ‘are trained to avoid sexual innuendo or any acts of implicit or explicit sexual degradation.’ Nevertheless, interrogators can exploit the detainee’s fear of being seen naked. In addition, female officers involved in the interrogation process may see the detainees naked; and for purposes of our analysis, we will assume that detainees subjected to nudity as an interrogation technique are aware that they may be seen naked by females.