Instructions for waterboarding

Apparently, the Bush administration's instructions for waterboarding went something like this:
- strap subject into an inclined gurney and apply face cloth,
- rinse
- repeat as needed (with the "repeat" part being used more than 200 times for Abu Zubaydah and Khalid Sheikh Mohammed).

Specifically, the Department of Justice described instructions applicable in 2005 as:

Waterboard may be approved for use with a given detainee only during, at most, one single 30-day period, and that during that period, the waterboard technique may be used on no more than five days. We further understand that in any 24-hour period, interrogators may use no more than two "sessions" of the waterboard on a subject--with a "session" defined to mean the time that the detainee is strapped to the waterboard--and that no session may last more than two hours. Moreover, during any session, the number of individual applications of water lasting 10 seconds or longer may not exceed six. As noted above, the maximum length of any application of water is 40 seconds (you have informed us that this maximum has rarely been reached). Finally, the total cumulative time of all applications of whatever length in a 24-hour period may not exceed 12 minutes.

The techniques that were used on Abu Zubaydah and Khalid Sheikh Mohammed were likely more severe, with these guidelines being developed in light of that earlier experience.

Many people have argued that waterboarding is not torture because we subject SERE trainees to this procedure. However, the DOJ memo emphasizes the differences between the way the technique was applied in SERE training and the way that it was applied to the detainees. In addition to more frequent applications, the CIA interrogators used greater volumes of water and employed numerous techniques to force detainees to take in water. The CIA's Office of Medical Services concluded that "the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant. Consequently, according to the OMS, there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe."

Of course, your mileage may vary.

Implications of torture

Two follow-ups on Judge Crawford's statement that she had dropped charges against Mohammed al-Qahtani because she had concluded that he had been tortured.

The New York Times hosts an on-line symposium on the topic, with responses ranging from a call for further investigations and prosecution of the torturers

It is not enough to drop criminal charges against the torture victims, as Ms. Crawford did. Indeed, if wrongdoers can be prosecuted without reliance on coerced evidence, they should be. Rather, we must hold the torturers accountable. To date, not a single high-level military or administration official has been deemed responsible for the torture policy – even though it was specifically authorized by Donald Rumsfeld, Dick Cheney, and many others in the highest levels of the Bush Cabinet and executive branch.

to claims that the conduct has been blown out of proportion

Ms. Crawford’s conclusion is another instance of the military getting it wrong. Isolation and temperature variations of the type we are talking about here are not torture. To contend otherwise is to trivialize something that is truly heinous. It may be politically correct, but it is wrong. American law has always maintained a bright line between the egregious pain and suffering caused by actual torture and other forms of abusive conduct. Ms. Crawford’s suggestion that abusive conduct that has a "medical impact" meets the “legal definition of torture” is preposterous.

Over at slate.com, Dahlia Lithwick and Phillipe Sands argue that the U.S. has now passed a critical turning point

Under the 1984 Torture Convention, its 146 state parties (including the United States) are under an obligation to "ensure that all acts of torture are offences under its criminal law." These states must take any person alleged to have committed torture (or been complicit or participated in an act of torture) who is present in their territories into custody. The convention allows no exceptions, as Gen. Pinochet discovered in 1998. The state party to the Torture Convention must then submit the case to its competent authorities for prosecution or extradition for prosecution in another country.

The former chief judge of the United States Court of Appeals for the Armed Forces and general counsel for the Department of the Army has spoken. Her clear words have been picked up around the world. And that takes the prospects of accountability and criminal investigation onto another level. For the Obama administration, the door to the do-nothing option is now closed. That is why today may come to be seen as the turning point.

Regrettably for our country, Lithwick and Sands have it right. An allegation of heinous and illegal behavior by a credible and knowledgeable official requires investigation.

What me torture?

Last week, Vice President Dick Cheney, told the Weekly Standard,

I think on the left wing of the Democratic party, there are some people who believe that we really tortured...

Make that the left wing of the Democratic party and the Bush administration official in charge of trying the remaining Guantanamo detainees.

From this morning's Washington Post

The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.

Judge Crawford, who previously served in defense department posts in the Reagan and earlier Bush administrations, would now appear to be a fellow traveler in Dick Cheney's book.

In another blow to actually trying the terrorists, there may be insurmountable problems with the evidence in these cases. From another article in this morning's Post

A former military prosecutor said in a declaration filed in federal court yesterday that the system of handling evidence against detainees at Guantanamo Bay is so chaotic that it is impossible to prepare a fair and successful prosecution.

To that, you can add some outright bungling

Military defense lawyers also said yesterday that the Office of Military Commissions may have accidentally withdrawn the charges against all defendants at Guantanamo Bay facing trial, including Jawad and even Khalid Sheik Mohammed, the operational mastermind of the Sept. 11, 2001, attacks.

The Bush administration has held detainees for seven years and only successfully prosecuted a handful. At least that's what some on the left wing of the Democratic party say.