Yoo and his apologists will undoubtedly quibble yet again. There is the threat of electrocution, a threat made with a gun and deprivation of water, in one case for 11 days, none of which feature in the OLC's memos. However, outside of the specific torture program approved by the OLC, numerous prisoners who were held at Bagram before being transported to Guantà ¡namo have stated that they were actually subjected to electric shocks while hooded (rather than being threatened with electrocution), and that being threatened at gunpoint was a regular occurrence.
Moreover, it has also been stated that the withholding of medication was used with Abu Zubaydah after his capture, when he was severely wounded, and it should also be noted that numerous ex-prisoners have stated that, in Guantà ¡namo, it was routine for medical treatment to be withheld unless prisoners cooperated with their interrogators.
Most of all, however, a comparison between Daliberti and the OLC memos reveals the extent to which the techniques approved by Yoo resulted in "severe pain or suffering, whether physical or mental," which clearly exceeded that endured by David Daliberti and his fellow Americans in Iraq.
First of all, there is waterboarding, an ancient torture technique that has long been recognized as torture by the United States. As Eric Holder noted during his confirmation hearing in January 2009, "We prosecuted our own soldiers for using it in Vietnam." With this in mind, it ought to be inconceivable that anyone could argue that waterboarding Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times could be anything less than torture.
In addition, the prolonged isolation, prolonged sleep deprivation, nudity, hooding, shackling in painful positions, cramped confinement, physical abuse, dousing in cold water, beatings and threats endured by the CIA's high-value detainees (as revealed in the leaked International Committee of the Red Cross (ICRC) report based on interviews with the 14 men transferred to Guantà ¡namo from secret CIA prisons in September 2006) completes a picture that surely "shocks the conscience" more than the torture described in Daliberti, especially as those held were subjected to these techniques for far longer periods.
Should any further doubts remain about the definition of torture - and how it was implemented in the "War on Terror" - these should have been dispelled in January 2009, when, shortly before President Bush left office, Susan Crawford, the retired military judge who was the Convening Authority for the Military Commissions at Guantà ¡namo (responsible for deciding who should be charged) granted the most extraordinary interview to Bob Woodward of the Washington Post.
Crawford told
Woodward that the reason she had not pressed charges against Mohammed
al-Qahtani, a Saudi who was initially put forward for a trial by
Military Commission, along with Khalid Sheikh Mohammed, Ramzi bin
al-Shibh and three other men, was because he was tortured in
Guantà ¡namo.
"We tortured Qahtani," she said. "His treatment met the legal definition of torture."
"The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent," Crawford explained. "You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge," and to conclude that it was torture.
As I explained in an article at the time:
Al-Qahtani's treatment was severe, of course. As Time magazine revealed in an interrogation log that was made available in 2005, he was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation, threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a "fake rendition," in which he was tranquilized, flown off the island, revived, flown back to Guantà ¡namo, and told that he was in a country that allowed torture.
In addition, as I explained in my book The Guantà ¡namo Files:
The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently - sometimes as often as three times a day - and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping.
The techniques used on al-Qahtani were approved by defense secretary Donald Rumsfeld, but the impetus came from the torture memos written and authorized by Yoo and Bybee. Moreover, although Crawford was not so principled when it came to considering the treatment to which the high-value detainees had been subjected in CIA custody - on the basis, presumably, that such information would be easier to conceal in a Military Commission than al-Qahtani's well-publicized ordeal - it is clear from the ICRC report on the high-value detainees that their treatment also "met the legal definition of torture." In addition, it seems probable that the treatment of the 80 other prisoners held in secret CIA prisons, the treatment of prisoners in Afghanistan, before their arrival in Guantà ¡namo and the treatment of over 100 prisoners in Guantà ¡namo, who were subjected to versions of the "enhanced interrogation techniques" used on al-Qahtani would also constitute torture.
For these reasons, David Margolis' whitewash of Yoo and Bybee cannot be the final word. In his memo to Attorney General Eric Holder, dismissing the report's conclusions, Margolis tried to claim that it was important to remember that Yoo and Bybee were working in extraordinary circumstances, striving to prevent another major terrorist attack. In an early version of the report, OPR head Mary Patrice Brown dismissed this argument, asserting, "Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear."
This is correct, but another authoritative source also explains why there are no excuses for twisting the law out of all shape in an attempt to justify torture. As the UN Convention Against Torture stipulates (Article 2.2), "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."
The UN Convention also stipulates (Article 4. 1) that signatories to the Convention "shall ensure that all acts of torture are offences under its criminal law" and requires each state, when torture has been exposed, to "submit the case to its competent authorities for the purpose of prosecution" (Article 7.1). As with Article 2.2, there are no excuses for not taking action, and that includes political expediency, or, as Barack Obama described it, "a belief that we need to look forward as opposed to looking backwards."
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