The Reluctant Spy (20 page)

At one point in the early summer of 2002, the Counterterrorist Center approached several CIA people with post-9/11 field experience and asked whether we wanted to be trained in what they called
“enhanced techniques” for interrogation. We had some inkling of what these enhanced techniques entailed, enough to impel me to seek counsel from a top CIA officer I respected enormously. He suggested that these methods might well cross a dangerous moral and legal line, and I declined to be trained in them. Some of my colleagues accepted the invitation, and who could have blamed them at the time? Remember, this was still in the frantic months of mid-2002, when the prospect of another massive al-Qaeda attack, perhaps with biological or chemical weapons, seemed all too real. We needed actionable intelligence to prevent the next big one. Compared with kinder and gentler means of interrogation, these enhanced techniques of persuasion might get us what we needed.

The results of enhanced interrogations remained officially off limits to the public until late summer of 2008, when the Justice Department, responding to a court order, released a five-year-old report by the CIA inspector general on the alleged abuses. That sparked one of those eye-of-the-beholder donnybrooks so endemic to political Washington. Attorney General Eric Holder ordered a preliminary inquiry to see whether actions by Agency interrogators or contractors warranted a full criminal investigation. Absolutely right, said CIA critics, who insisted the harsh methods were illegal and had produced questionable intelligence at best. Baloney, said former vice president Dick Cheney, who insisted enhanced interrogation had produced actionable intelligence that prevented terrorist acts.

In fact, the report was heavily redacted, providing defenders and detractors alike just enough ammunition to make a modest case for their point of view. Cheney also repeated what had become something of a personal mantra: The Bush Justice Department had thoroughly reviewed the Agency's proposed enhanced interrogation techniques and found them to be consistent with national and international law.

Fortunately, we can take Dick Cheney's word and measure it against an extraordinary set of documents declassified in 2009 by
order of President Obama. These are the so-called torture memos—the chronology of meetings and the legal rationale that led to the use of enhanced interrogation techniques, especially on Abu Zubaydah and two other high-profile detainees.

I'm not a lawyer, but you don't need to be schooled in the fine points of constitutional, statutory, and international law to recognize the deep cynicism threaded throughout the arguments made in the torture memos. Think Wonderland. Think a descent through the Looking-Glass:

“When
I
use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you
can
make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that's all.”

THE STORY OF
the torture memos begins not long after we captured Abu Zubaydah in late March 2002. According to a narrative put together by the Senate Select Committee on Intelligence and declassified by Attorney General Eric Holder in April 2009, the CIA believed in 2002 that Zubaydah was withholding “imminent threat information” during his initial interrogation. In mid-May 2002, agency lawyers met with their counterparts at the National Security Council (NSC) and Justice's Office of Legal Counsel (OLC) to discuss a possible new interrogation plan and potential legal obstacles to its implementation. Two months after that, on July 17, Director of Central Intelligence George Tenet met with National Security Adviser Condoleezza Rice, who told my boss that the CIA could interrogate Abu Zubaydah using the enhanced techniques, but only subject to a determination of legality by the OLC.

The United States was then, and remains today, bound by certain national and international laws and rules on the treatment of prisoners. We are signatories, for example, to the UN Convention
Against Torture (CAT), which seems pretty straightforward to me. In article 1.1, the CAT prohibits “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.” Then there is title 18, section 2340A, of the United States Code, which prohibits torture committed by public officials. Section 2340 (1) defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody of physical control.”

The first of the torture memos, dated August 1, 2002, and signed by Jay S. Bybee, then assistant attorney general and the head of the OLC, takes on Section 2340 and basically argues that ducks don't quack and that apples are oranges if government lawyers say they are—that severe pain and suffering and specific intent are words subject to manipulation with a particular goal in mind. The memo is framed as a response to the CIA's request for guidance and plays back what the agency proposes to do under the rubric of “enhanced interrogation.” By now, the memos have spent months in the public domain, and Americans and others interested in what is done in our country's name have become familiar with these techniques. But it's worth reviewing them in the context of the memo that gave them life.

That first memo, drafted in part by OLC lawyer John Yoo, describes ten techniques that progress up a ladder of intensity. On the lowest rung is the “attention grasp,” a standby in station houses everywhere, in which the interrogator grabs his prisoner by the lapels or collar with both hands and draws him close “in a controlled and quick motion.” Most of us could live with that, if the grilling went no further. But it does.

Next comes “walling,” a logical extension of the attention grasp, in which the interrogator takes the individual in his custody and slams him hard against a wall built for the express purpose of making a
loud noise on contact. “During this motion,” Bybee writes in the memo, echoing what CIA lawyers explained to him, “the head and neck are supported with a rolled hood or towel that provides a c-collar to help prevent whiplash.”

The “facial hold” and the “insult slap,” rungs three and four on the ladder, are more or less what they seem to be—the latter designed “not to inflict physical pain that is severe or lasting.” No, its purpose is to “induce shock, surprise, and/or humiliation.” “Cramped confinement” is another technique that leaves little to the imagination: The detainee is kept in a dark space for up to eighteen hours at a time, depending on the size of the “container.” The sixth technique, “wall standing” to induce muscle fatigue, requires the detainee to stand four or five feet from a wall, with feet spread to shoulder width and arms extended so that the fingers rest on the wall. The fingers support all the weight, and the detainee is not permitted to move or reposition hands or feet. Other stress positions can be employed, all of them designed “to produce the physical discomfort associated with muscle fatigue.”

“Sleep deprivation,” a hoary tactic used in interrogations throughout the ages, ranks as the eighth technique Bybee approves as legal in the August 2002 memo, although he cites conditions: “You [CIA officials] have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted.”

The ninth technique: Zubaydah apparently had a case of entomophobia—a fear of insects—so his interrogators sought and got approval to place him in a “cramped confinement box with an insect.” The bug would be harmless, but Zubaydah would be told that his temporary boxmate was a stinging insect.

The last resort was “waterboarding,” the harshest of CIA's enhanced techniques. Most of us know what waterboarding is, given the public furor it has generated since its use was first exposed. But
I think it's important and instructive to consider Bybee's dispassionately clinical description of the practice. “In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet,” he writes in the memo, again reflecting what the CIA has asked that he approve as legal interrogation.

According to reporting by
The New York Times
and others, the people pitching these enhanced techniques to the decision makers in the White House and Justice Department had no sense of their provenance. They apparently did not know that waterboarding was a form of torture favored by interrogators during the Spanish Inquisition and, more recently, by the Communists during the Korean War. The common thread was motive: In fifteenth-and sixteenth-century Spain and twentieth-century Korea, the interrogators sought
conversions or false confessions that could be used for propaganda purposes.

The Korean experience is why the U.S. military now uses versions of enhanced interrogation techniques on pilots and special operations personnel in a program called SERE, for Survival, Evasion, Resistance, and Escape. Our government wants to give our people a sampling of what they might have to endure if they are captured and interrogated by an enemy inattentive to the fine points of the UN Convention Against Torture. But there is one big difference between what our pilots and special ops people undergo and what we do to detainees under our control: Our folks know that SERE, as tough as it is, is still a training exercise. In contrast, the entire point of enhanced interrogation on detainees is to convince them that it's real—physical and mental anguish without finite end. The whole idea is to induce a sense of hopelessness, cut short only if they choose the option of cooperation with their tormentors.

In the Bybee memo, and in three others from May 2005 signed by the OLC's Steven G. Bradbury, the lawyers argue that none of these enhanced interrogation techniques, used separately or in combination, amount to torture as CIA advocates have attested to them. The reasoning turns on the parsing of some key words. Throughout the memos and their antiseptic descriptions of what is proposed for recalcitrant detainees, great weight is accorded to the fact that medical and psychological personnel would be on hand to monitor the administration of each and every enhanced technique. The medical doctors and shrinks would safeguard the process, presumably by spotting the precise moment mere physical or mental pain or suffering is about to graduate to “severe,” thus becoming torture and violating the law. Even past that point, the action might not clear the bar and qualify as torture if the interrogator had not “specifically intended” it as such.

By the time the last memo was signed by Bradbury on
May 30, 2005, the hierarchy of enhanced techniques had grown to fourteen, with waterboarding still atop the pyramid as the interrogators' last, best option. Now, having argued that none of these techniques can be construed as torture so long as the interrogators are careful about the severity and intent of their actions, the lawyers focus on what I think may be the ultimate loophole: jurisdiction.

Abu Zubaydah, Khalid Shaikh Mohammed, and Abd al-Rahim al-Nashiri, the third detainee waterboarded, were all captured abroad and interrogated in foreign countries. As it happens, article 16 of the UN Convention Against Torture places no obligation on a signatory state for acts outside “territory under its jurisdiction.” Presto: no jurisdiction, no obligation under CAT.

The memo also raises a U.S. Senate “reservation” placed on our signing of the CAT. We would be bound by the convention only insofar as the phrase “cruel, inhuman or degrading treatment or punishment” meant those words as prohibited by the Fifth, Eighth, and/or Fourteenth amendments to the U.S. Constitution. Fair enough, you and I could live with that, right? We could, but the lawyers can't. “These Amendments,” the OLC lawyers insist in their guidance to the CIA, “have been construed by the courts not to extend protections to aliens outside the United States.” You get the idea.

Waterboarding, then Vice President Cheney said publicly, was fine with him as an interrogation technique used against America's enemies, even as the Bush administration officially insisted that our nation does not torture. I wonder whether Cheney would regard waterboarding as torture if al-Qaeda or Taliban terrorists applied it to our country's brave men and women fighting in Afghanistan. Or, for that matter, if waterboarding were combined with sleep deprivation, stress positions, and the other fun-house horrors and used against a relative or close friend.

The lawyers can play their word games, but there's no real
mystery here. We know what torture is. It's waterboarding that triggers a gag reflex and sense of suffocation, induces vomiting, and causes extreme stomach pain because of the stress on the abdominal muscles. It's sleep deprivation that keeps a prisoner awake for days on end, then allows for no more than eight hours of sleep before the cycle begins again. It's the use of these and other methods designed to force information from a detainee who is likely to say anything just to make the regime of pain and suffering end, even if some tame doctor rules it less than “severe.”