We learn that technique number 12 is sleep deprivation, and that ‘the longest period of time for which any detainee has been deprived of sleep by the CIA is 180 hours’. This is how it works:
12. Sleep deprivation (more than 48 hours). This technique subjects a detainee to an extended period without sleep. You have informed us that the primary purpose of this technique is to weaken the subject and wear down his resistance.
The primary method of sleep deprivation involves the use of shackling to keep the detainee awake. In this method, the detainee is standing and is handcuffed, and the handcuffs are attached by a length of chain to the ceiling. The detainee’s hands are shackled in front of his body, so that the detainee has approximately a two to three foot diameter of movement. The detainee’s feet are shackled to a bolt in the floor. Due care is taken to ensure that the shackles are neither too loose nor too tight for physical safety. We understand from discussions with OMS that the shackling does not result in any significant physical pain for the subject. The detainee’s hands are generally between the level of his heart and his chin. In some cases, the detainee’s hands may be raised above the level of his head, but only for a period of up to two hours. All of the detainee’s weight is borne by his legs and feet during standing sleep deprivation
…. We understand that a detainee undergoing sleep deprivation is generally fed by hand by CIA personnel so that he need not be unshackled; however, ‘if progress is made during interrogation, the interrogators may unshackle the detainee and let him feed himself as a positive incentive,’ October 12 [document blacked out – redacted here] Letter at 4.
If the detainee is clothed, he wears an adult diaper under his pants. Detainees subject to sleep deprivation who are also subject to nudity as a separate interrogation technique will at times be nude and wearing a diaper. If the detainee is wearing a diaper, it is checked regularly and changed as necessary. The use of the diaper is for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee, and it is not considered to be an interrogation technique.
Towards the middle of this document, the lawyer, having drawn on many academic references, notes that ‘drawing distinctions among gradations of pain is obviously not an easy task, especially given the lack of any precise, objective scientific criteria for measuring pain’, and ‘pain is a complex, subjective, perceptual phenomenon with a number of dimensions – intensity, quality, time course, impact and personal meaning – that are uniquely experienced by each individual and thus, can only be assessed indirectly’. There follow pages of attempts to then define ‘severe mental pain or suffering’ and the question of how ‘prolonged mental harm’ can be proved. The role of OMS personnel is emphasised strongly, and the presence of these medical personnel at the torture of men is portayed as showing their duty ‘to prevent severe physical or mental pain or suffering’. Bradbury, unsurprisingly, concludes by saying: ‘Although extended sleep deprivation and use of the waterboard present more substantial questions in certain respects under the statute and the use of the waterboard raises the most substantial issue – none of these specific techniques, considered individually, would violate the prohibition in sections 2340–2340A.’
*
Memo 4: Top Secret [document blacked out – redacted in parts]
Date: May 30th 2005
From: Steven G. Bradbury, Principal Deputy Assistant Attorney General
To: John A. Rizzo, Senior Deputy General Counsel for the Central Intelligence Agency
Subject: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees.
This memorandum begins with a brazen exercise in legal cynicism. Bradbury describes the territorial reach of Article 16 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of which the US is a signatory:
By its terms, Article 16 is limited to conduct within ‘territory under [United States] jurisdiction.’ We conclude that territory under United States jurisdiction includes, at most, areas over which the United States exercises at least de facto authority as the government. Based on CIA assurances, we understand that the interrogations do not take place in any such areas. We therefore conclude that Article 16 is inapplicable to the CIA’s interrogation practices and that those practices thus cannot violate Article 16.
However, Bradbury wants to explore whether if Article 16 did apply to the interrogation techniques used by the CIA, would these then be open to a challenge from the Supreme Court on the grounds of executive conduct which ‘shocks the conscience’. This phrase is jarring in the context of these memoranda because, momentarily, it alludes to the existence of a world beyond the CIA. He then goes through pages of descriptions of the torturing of detainees, and how, in all cases, these ‘enhanced techniques’ have been justified by the ‘significant information’ that has emerged from those tortured.
Page after page then follow of legal argument about the precise meaning of the term ‘territory under its jurisdiction’, and how Guantanamo Bay may be exempted from this phrase. By page 27 of this document we return to an exploration of what government conduct that ‘shocks the conscience’ would actually mean. There are ‘relatively few cases’ in which the Supreme Court has analysed this, so little in the way of legal precedent exists. Bradbury then itemises the ways the CIA interrogation programme could be challenged:
We first consider whether the CIA interrogation program involves conduct that is ‘constitutionally arbitrary’. ‘We conclude that it does not’.
We next address whether, considered in light of ‘an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them’ use of the enhanced interrogation techniques constitutes government behavior that ‘is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’
This matter is more complicated to give a clear answer on. Bradbury later explains that: ‘Each year in the State Department’s Country Reports on Human Rights Practices, the United States condemns coercive interrogation techniques and other practices employed by other countries.’ He then notes, rather worryingly: ‘Certain of the techniques the United States has condemned appear to bear some resemblance to some of the CIA interrogation techniques.’
He then lists these as ‘psychological torture’, ‘nudity, water dousing, sleep deprivation’. But he concludes this section by saying ‘we do not believe that the reports provide evidence that the CIA interrogation program “shocks the contemporary conscience”’.
There’s also a revealing footnote here, where Bradbury admits the hypocrisy at the heart of US policy:
We recognize that as a matter of diplomacy, the United States may for various reasons call other nations to account for practices that may in some respects resemble conduct in which the United States might in some circumstances engage, covertly or otherwise.
Bradbury concludes this forty-page memorandum by stating: