Most attention about what CIA interrogators were permitted to do to detainees has focused on a number of physical techniques that were disclosed in detail by four Justice Department memos declassified and released last week.
One thing in those memos that has so far escaped much notice is something that interrogators were allowed to tell detainees.
According to the May 10, 2005 memo by Steven Bradbury on whether the combination of interrogation techniques might cumulatively might amount to torture, interrogators were given permission to tell detainees they were going to “do whatever it takes to get important information” (page 7).
But the Justice Department’s concern about this statement was sufficiently high that Bradbury, the head of the Office of Legal Counsel, addressed it in two other places in the 20-page memo.
On page 11 Bradbury concluded that this threat “could not reasonably be considered specifically intended to cause severe mental pain or suffering,” and on pages 18 and 19, he goes into greater detail on the issue.
“A detainee might understand such a statement as a threat that, if necessary, the interrogators will imminently subject him to ‘severe physical pain or suffering’ or to ‘the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality,’ or he perhaps even could interpret the statement as a threat of imminent death (although, as the detainee himself would probably realize, killing a detainee would end the flow of information). We doubt that this statement is sufficiently specific to qualify as a predicate act under section 2340(2).
“Nevertheless, we do not have sufficient information to judge whether, in context, detainees understand the statement in any of these ways. If they do, this statement … requires considering whether it alters the detainee’s perception of the interrogation techniques and whether, in light of this perception, prolonged mental harm would be expected to result from the combination throughout the interrogation process of all the techniques used. We do not have any body of experience, beyond the CIA’s own experience with detainees, on which to base an answer to this question.”
Bradbury bases his conclusion on the fact that “none of the detainees who have heard such a statement in their interrogations has experienced ‘prolonged mental harm,’ such as post-traumatic stress disorder,” in the judgment of the CIA’s Office of Medical Services (OMS).
But the Justice official then gives a very cautionary note. In fact, he could even be interpreted as recommending against using the threat.
“This body of experience supports the conclusion that the use of the statement does not alter the effects that would be expected to follow from the combined use of the techniques. Nevertheless, in light of these uncertainties, you may wish to evaluate whether such a statement is necessary part of the interrogation regimen or whether a different statement might be adequate to convey to the detainee the seriousness of the situation.”
It’s important to remember the legal context here: Bradbury is explaining whether or not the Justice Department believes that any of the interrogation techniques meets the legal definition of torture, which is defined in U.S. law (section 2340 of U.S. Code) as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”
The law further states the following definitions:
“severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
The government’s concern with a verbal threat obviously falls under section D.
At the end of this particular memo, Bradbury makes a comment that is particularly salient now that the memos are public, they are being debated, and some are calling for officials such as Bradbury to be prosecuted.
“We emphasize that these are issues about which reasonable persons may disagree. Our task has been made more difficult by the imprecision of the statute and the relative absence of judicial guidance, but we have applied our best reading of the law to the specific facts that you have provided.”
— Jon Ward, White House reporter, The Washington Times