The Alternative Set of Procedures

I couldn't just post a link to the Torture Memo and leave it at that. I read it. I highlighted some passages. There are, I am sure, important passages that I missed. Sorry about that, but I thought trimming it down might be better than just simply linking to it. So, here we go. I'll start with page numbers, follow with the passage, and then, if I make any of my own comments they will be in bold. All italics are original. Brackets are mine. Here are the links to the memo again. Part 1. Part 2.

5 – In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy.

I feel this is an appropriate introduction to the memo because this is certainly one of the themes of the whole document. The President alone decides what methods of war and interrogation are best. This isn’t going to get any prettier.

11 – Interpretation to Avoid Constitutional Problems

This whole section is pretty fascinating. How could it not be with a lead in like that? In order to trim this post down a bit I only point you to this specific section about a third of the way down the page.

15 – As one commentator has explained, unlawful belligerents are “more often than not treated as war or national criminals liable to be treated at will by the captor. There are almost no regulatory safeguards with respect to them and the captor owes no obligation towards them.”

24 – Assault

Beginning on this page is a lengthy explanation of how they define assault.

25 – On the other hand, changing the detainee’s environment such as by altering the lighting or temperature would not constitute simple assault.

The justification begins, paving the way for exposing prisoners to extreme cold.

26 – Section 113 proscribes assault resulting in “serious bodily injury”… “Serious bodily injury” is defined as “bodily injury which involves…a substantial risk of death;…extreme physical pain;…protracted and obvious disfigurement; or…protracted loss or impairment of the function of a bodily member, organ, or mental faculty.”

Without a law background a lot of this language gave me a headache and a hell of a hard time figuring out what was being said, but essentially this section, and many more throughout the document, attempts to narrow the definitions of assault, torture, etc.

33 – Subsection (c) of section 2441 defines “war crimes” as (1) grave breaches of any of the Geneva Conventions; (2) conduct prohibited by certain provisions of the Hague Convention IV, Hague Convention IV Respecting the Laws and Customs of War on Land, Oct.18, 1907, 36 Stat. 2277; or (3) conduct that constitutes a violation of common Article 3 of the Geneva Conventions. We have previously concluded that this statute does not apply to conduct toward the members of al Qaeda and the Taliban. … We reached this conclusion because we found al Qaeda to be a non-governmental terrorist organization…

Another theme of this document is that this is some new kind of enemy we face so that nullifies international laws and things like “Respecting the Laws and Customs of War on Land” that the United States had previously agreed to obey.

37 – Further, an individual who acts with a good faith belief that his conduct would not produce the result that the law prohibits would not have the requisite intent.

The assumption that in a war you will have interrogators acting on good faith is too big of a stretch for me. In the first place, war brings out the most grotesque traits of the human psyche, and then you are going to tell me that you have made the assumption that everyone out there is acting on good faith and not crossing the line? “Good faith” is used a lot throughout the memo. It was probably comforting for some people to read those words in this document, falsely assuring them that humans have acted on “good faith” before and nothing bad has happened.

38-39 – Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture “severe pain” must rise to a similarly high level—the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.

Again, narrowing the definition of “severe pain”, so to presume one is only experiencing severe pain if they have organ failure, loss of movement, or a feeling of imminent death. Disturbing.

41 – [prepare yourself] Thus, if a defendant has a good faith belief that his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture.

Another theme: convenience.

45 – The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. … In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts.

47 – Moreover, as U.S. declarations during CAT’s [Convention Against Torture] ratification make clear, the Convention is non-self-executing and therefore places no legal obligations under domestic law on the Executive Branch, nor can it create any cause of action in federal court.

The President is, once again, in the clear.

48 – [The following section is really fascinating. The run up to the war in Iraq, Gitmo, etc. was much longer than we could have possibly known back then.] You have also asked whether U.S. interrogation of al Qaeda and Taliban detainees could lead to liability and potential prosecution before the International Criminal Court (“ICC”). The ICC cannot take action against the United States for its conduct of interrogations for two reasons. First, under international law a state cannot be bound by treaties to which it has not consented. Although President Clinton signed the Rome Statute, which establishes the ICC, the United States has withdrawn its signature for that agreement and has not submitted it to the Senate for advice and consent—effectively terminating it. See Letter for Kofi Annan…from John R. Bolton…(May 6, 2002) (notifying the U.N. of U.S. intention not to be a party of the treaty)…The United States cannot, therefore, be bound by the provisions of the ICC treaty nor can U.S. nationals be subject to ICC prosecution.

Withdrawing signatures? Really?

54 – Ultimately, in choosing the phrase “severe pain,” the parties concluded that this phrase “sufficiently…conveyed the idea that only acts of a certain gravity shall…constitute torture.”

Just in case you had forgotten.

56 – Further, if we are correct in our suggestion that CAT [Convention Against Torture] itself creates a heightened intent standard, then the understanding the Bush Administration attached is less a modification of the Convention’s obligations and more of an explanation of how the United States would implement its somewhat ambiguous terms.

I don’t know all the statutes set forth in the CAT, but they can’t be anymore ambiguous than the terms used by the Bush administration to describe interrogation methods. See advanced interrogation techniques, rough interrogation, and alternative set of procedures.

58 – The concept of self-defense in international law of course justifies more than activity designed merely to resist an armed attack which is already in progress. Under international law every state has, in the words of Elibu Root, “the right…to protect itself by preventing a condition of affairs in which it will be too late to protect itself.”

Torture as self-defense, the biggest stretch of all. There is more.

61 – Actions taken in “good-faith…to maintain or restore discipline” do not constitute excessive force.

64 – Here, interrogation methods that do not deprive enemy combatants of basic human needs would not meet the objective element of the conditions of confinement test. For example, a deprivation of a basic human need would include denial of adequate shelter, such as subjecting a detainee to the cold without adequate protection. … Additionally, the clothing of a detainee could also be taken away for a period of time without necessarily depriving him of a basic human need that satisfies the objective test.

This is a truly appalling passage. We know that sleep deprivation has been used. How is sleep not a basic human need? How are basic human needs measured? I presume they would be measured by assessing living conditions for humans all throughout the globe. Some article of clothing sure seems like a basic human need. I digress though, they did say “for a period of time”.

69 – [Just for clarification] (1) Wall Standing. The prisoner stands spread eagle against the wall, with fingers high above his head, and feet back so that he is standing on his toes such that all of his weight falls on his fingers.
(2) Hooding. A black or navy hood is placed over the prisoner’s head and kept there except during the interrogation.
(3) Subjection to Noise. Pending interrogation, the prisoner is kept in a room with a loud continuous hissing noise.
(4) Sleep Deprivation. Prisoners are deprived of sleep pending interrogation.
(5) Deprivation of Food and Drink. Prisoners receive a reduced diet during detention and pending interrogation.

These methods aren’t considered to constitute torture.

70 – Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment…they did not occasion suffering of the particular intensity and cruelty implied by the word torture…

Narrowing again, the definition of torture.

73 – Even if one were to accept the notion that customary international law has some standing within our domestic legal system, the President may decide to override customary international law at his discretion.

I think we have established that.

74 – We believe that a defense of necessity might be raised in certain circumstances. Often referred to as the “choice of evils” defense, necessity has been defined as follows: Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;

You just read that right. Let’s say a prisoner is assumed to be planning an attack similar to 9/11. As long as you don’t fly a jumbo jet into him and kill thousands of people, your interrogation methods are justifiable.

75 – [As explained in this scenario] “if A kills B reasonably believing it to be necessary to save C and D, he is not guilty of murder even though, unknown to A, C and D could have been rescued without the necessity of killing B.” … Under these circumstances, a particular detainee may possess information that could enable the United States to prevent imminent attacks that could equal or surpass the September 11 attacks in their magnitude. Clearly, any harm that might occur during an interrogation would pale to [in] insignificance compared to the harm avoided by preventing such an attack, which could take hundreds of thousands of lives.

78 – Fourth, the amount of force should be proportional to the threat. [Remember, it is on good faith that we are presuming there is a substantial threat from each and every detainee.] As LaFave and Scott explain, “the amount of force which the defender may justifiably use must be reasonably related to the threatened harm which he seeks to avoid.”

80 – [In Conclusion] As we have made clear in other opinions involving the war against al Qaeda, the Nation’s right to self-defense has been triggered by the events of September 11. If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.