Legalizing Torture? Part II: The 30 May 2005 Bradbury Memo

[This is the secondin a series of posts analyzing the recently released Office of Legal Counsel memos discussing the legality of proposed coercive interrogation methods to be used against suspected members of al Qaeda. The second memo to be considered is the May 30, 2005 memo from Steven Bradbury to John Rizzo, the Senior Deputy General Counsel of the CIA, entitled Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogiation of High Value al Qaeda Detainees. Part One of the memo is here; Part Two is here.]

I wrote in Part One of this series that it seems unlikely that there are grounds for criminal prosecutions in the August 1, 2002 memo. However, I'm not so sure that can be said for the May 30, 2005 memo. In this one, Steven Bradbury was advising the CIA on the obligations of the US under the Convention Against Torture and specifically how those obligations impacted the use of certain coercive interrogation techniques. Thus this memo is very detailed about the use of these techniques, as it seeks to determine whether they fall afoul of international law.

There's a lot of stuff in this memo...but I want to focus on the question of waterboarding, as that seems to be the most controversial. Page 15 of the memo clearly spells out the US policies governing the use of the waterboard:

The waterboard may be authorized for, at most, one 30 day period, during which the technique can actually applied on no more than five days...Further, there can be no more than two sessions in any 24-hour period. Each session--the time during which the detainee is strapped to the waterboard--lasts no more than two hours. There may be at most six applications of water lasting 10 seconds or longer during any session, and water may be applied for a total of no more than 12 minutes during any 24-hour period.

However, on page 37, we read this shocking revelation:

The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah, IG Report at 90, and 183 times during March 2003 in the interrogation of KSM (Khalid Sheikh Mohammed).

If you go back and do the math on the instructions from p. 15, the rules limit the use of the waterboard to no more than 60 times per month (five days per month, two sessions per day, six applications of water during each session; 5x2x6=60). And yet, KSM was waterboarded 183 times.

The general standard that Bradbury applies throughout this memo is whether the action in question "shocks the conscience" and he eventually concludes, on p. 38, that "the CIA interrogation techniques, either their careful screening procedures and medical monitoring, do not 'shock the conscience.'" Back on p. 37, he argued that "the CIA usses enhanced techniques only to the extent reasonably believed necessary to obtain the information and takes great care to avoid inflicting severe pain or suffering or any lasting or unnecessary harm. In short, the CIA's program is designed to subject detainees to no more duress than is justified by the Government's interest in protecting the United States from further terrorist attacks."

Perhaps. But then what explains why KSM was waterboard 123 times beyond the established limit? That certainly doesn't square with the previously made claim that KSM only held out for 35 seconds during his waterboarding. So, even if the use of waterboarding is acceptable under US law, what happens when those laws themselves are broken? If waterboarding does, as Bybee noted in the 2002 memo, likely cause a fear of imminent death, using such a technique 200% more than is allowable under the law would certainly seem to shock the conscience. It is odd indeed that Bradbury mentions the number of times both detainees were waterboarded but doesn't account for the actions in any way.

This memo does seem to argue for criminal behavior, most likely on the part of the interrogators, and perhaps the higher-ups who knew of the actions and did nothing. This is still not an argument that the techniques were, if used according to the rules, torture or that the US was wrong to use these techniques. It certainly does point out the dangers in walking the fine line between coercive interrogation and torture. Given the fineness of the line and the paramount importance of legal definitions in this instance, if waterboarding was to be used it have been used within whatever legal framework was created to justify and bound its legality. When that line is crossed, the action moves into torture.

[I'll discuss the rest of this memo as well as the others later.]