Still, according to the recently released July 2007 memo from the Office of Legal Counsel, the technique was determined not to cause “serious physical pain or suffering” and not to violate the War Crimes Act. The War Crimes Act prohibits torture and “cruel and inhuman treatment.”

Illustration by: Matt Mahurin

A comparison of the inspector general report with legal memos released from the Office of Legal Counsel within the Justice Department, however, reveals that lawyers were so uncertain about how and whether sleep deprivation could be used legally that their advice to the CIA ranged from restricting its use to 48 continuous hours, to allowing it for 180 hours or more. And although the 2007 legal memo specifically mentions that the CIA said it might use the technique for 180 hours, the lawyers restricted their analysis, in footnote 7, to only the legality of its use for up to 96 hours. Meanwhile, the inspector general report discusses the contemplated use of sleep deprivation on Abu Zubaydah for up to 11 days at a time — or 264 hours straight.

None of the former interrogators, physicians, lawyers or government officials could explain to TWI exactly why the CIA and Justice Department lawyers changed the rules so sharply and frequently. A call to Jack Goldsmith, the Harvard Law Professor and director of the Office of Legal Counsel from 2003 to 2004 was not returned.

“How they go from 48 to 100 plus hours is anybody’s guess,” said Jack Cloonan, a former FBI special agent who worked in the Osama Bin Laden unit from 1996 to 2002. “I think that they were making the rules up as they went along,” he said, adding that “they outsourced a lot of this,” referring to the role, recently revealed by The New York Times, of Jim Mitchell and Bruce Jessen, two businessmen-psychologists who developed the interrogation procedures for the CIA but had no interrogation experience themselves.

But the experts on sleep deprivation all appear to agree – and the literature on the subject is remarkably consistent – that sleep deprivation is physically and mentally harmful, and largely ineffective at producing useful information. Still, it’s tempting for government officials desperate to get detainees to talk.

“It will elicit information, that’s true,” said Cloonan. “People will talk. But in point of fact the substance is what separates what works and what doesn’t. Did they provide actionable intelligence, and could you verify what was being told?” asks Cloonan. “There’s a big diff between compliance — giving information to stop what they’re being subjected to — and real cooperation, where they’re giving useful information.”

Scientists, physicians and interrogators all say that because sleep deprivation causes extreme confusion and even psychosis, it’s impossible to know if what the detainee is telling interrogators is true or not.

“Sleep deprivation has been extensively studied,” said Dr. Steven Miles, professor of medicine at the University of Minnesota Medical School and faculty member of its Center for Bioethics, as well as the author of the book, “Oath Betrayed: America’s Torture Doctors.” “It will cause people to speak. It does not produce reliable intelligence. It impairs the ability to concentrate in a way that allows the interrogatee to assemble coherent narratives. So it’s counterproductive in terms of information solicitation.”

A December 2006 report from the Intelligence Science Board of the National Defense Intelligence College says that sleep deprivation is associated with, among other things, “increased suggestibility,” adding: “On this last point it is worth noting that suggestibility increases specifically under conditions simulating an interrogation. At least one study has found that “the effect on suggestibility of one or two night’s sleep loss is comparable to the difference in suggestibility between true and false confessors.”

That’s such a basic fact for interrogators that in the book, “Introduction to Forensic Psychology,” by Curt and Anne Bartol, the glossary lists “Coerced-compliant false confessions” as “Admissions of guilt most likely to occur after prolonged and intense interrogation experiences, especially in situations where sleep deprivation is a feature. The suspect, in desperation to avoid further discomfort, admits to the crime even knowing that he or she is innocent.”

As Tom Parker, a former British Intelligence agent, now Amnesty International’s Policy Director for Terrorism, Counterterrorism and Human Rights explained: “Sleep deprivation was never designed as an interview tool. It was used by the KGB and its precursors as a way to break people down to give false confessions. These techniques are not about getting people to tell the truth, they’re about breaking people down to kill their spirit.”

The justification for the technique originated with the idea of learned helplessness, based on studies conducted decades ago on dogs.

“They took dogs, tied them in a cage and shocked them,” explained Miles. “They showed that the dogs would act to resist or escape, unless the dogs learned there was nothing they could do to resist. Then they would just lie there and take it.”

The theory, explained Miles, is that “when used with other techniques it will induce dependence on the interrogator, which will cause the person to comply.” But all the research done on this from around the world reveals that “this technique simply does not gather intelligence.”

Sleep deprivation is always part of a package: as described in CIA inspector general report, prisoners were shackled, semi-starved, put in diapers and forced to stand that way. Their hands were cuffed along the wall close to their chins, according to Department of Justice memos. If they nodded off and stopped standing, the chains would pull at their wrists, waking them up.

Andrea Northwood, director of client services at the Center for Victims of Torture in Minneapolis, recently told The Associated Press that her organization considers 96 hours of sleep deprivation to be torture.

Sen. John McCain (R-Ariz.), who was tortured in Vietnam, has also said that prolonged sleep deprivation is torture, and recently denied the claim in the CIA inspector general report that he was among several members of Congress who approved its use.

Menachem Begin, the Israeli prime minister from 1977-83, tortured by the KGB as a young man, famously described sleep deprivation in his book, White Nights:

“In the head of the interrogated prisoner, a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one sole desire: to sleep… Anyone who has experienced this desire knows that not even hunger and thirst are comparable with it,” he wrote. “I came across prisoners who signed what they were ordered to sign, only to get what the interrogator promised them” — time to sleep.

Although the technique was prohibited by President Obama, some worry it could be revived in the future because it at least gets people to talk, and it’s generally perceived as less offensive than waterboarding, head-slamming or forced nudity. “Sleep deprivation may be seen as a tempting technique to restore,” wrote reporter Greg Miller in the Los Angeles Times recently.

In justifying the use of sleep deprivation in a 2005 memo, Justice Department lawyers argued that it was okay for CIA interrogators to keep terror suspects awake for seven and a half days straight — because “even very extended sleep deprivation does not cause physical pain.” They relied for that claim on the work of university researchers who found that people who were deprived of sleep for just one night had an increased sensitivity to certain types of pain. Justice Department memos dated May 10, 2005 cited this study to support the conclusion that severe sleep deprivation of up to 180 consecutive hours might cause some increased pain but not “severe physical pain” — even when used together with slaps, stress positions, water dousing and “walling” — slamming a detainee’s head repeatedly against a flexible wall.

“Because sleep deprivation appears to cause at most only relatively moderate decreases in pain tolerance, the use of these techniques in combination with extended sleep deprivation would not be expected to cause severe physical pain,” wrote Steven Bradbury, a principal deputy assistant attorney general in the Office of Legal Counsel, who signed the memos. (Bradbury has since left the department and works at a private law firm in Washington. He did not return calls for comment.)

But those same academic researchers have since called the Justice Department’s use of their work “nonsense.” “To claim that 180 hours [of sleep deprivation] is safe in these respects, is nonsense.” Dr. James Horne, with the Loughborough University Sleep Research Centre, told the blog Obsidian Wings. “Prolonged stress with sleep deprivation will lead to a physiological exhaustion of the body’s defense mechanisms, physical collapse, and with the potential for various ensuing illnesses.”

In their studies, the doctors explained, the subjects were well-fed and could play video games and watch television. Detainees under interrogation, on the other hand, were often semi-starved and chained into place, not even allowed to go to the bathroom.

“In a manner, it’s like giving a drug to a patient: if you administer it in small doses for therapeutic reasons, it helps them. If you give it in huge volumes, it becomes toxic — and can even kill them,” another of the researchers cited, Dr. S. Hakki Onen, sleep specialist and geriatrician, told Time Magazine.

Although the Justice Department lawyers wrote that “extended sleep deprivation cannot be expected to cause ’severe mental pain or suffering,’” the doctors vigorously disagree.

After several days, “the mental pain would be all too evident, and arguably worse than physical pain,” Dr. Horne said to Obsidian Wings.

Notably, a combination of techniques similar to those used by the CIA has been ruled unlawful by the European Court of Human Rights. In the case Ireland v. U.K., the court held that a combination of sleep deprivation, hooding, wall-standing, continuous white noise, sleep deprivation and “the bread and water diet” violated international humanitarian law.

What’s odd, say former interrogators, is that the military knew this and for the most part, resisted using these techniques. The CIA, however, relying on inexperienced contractors who developed its interrogation strategies based on the military’s Survival Evasion Resistance Escape (SERE) training, seems to have completely ignored common knowledge.

“The point is you realize when you’re going through that [SERE] training, they tell you this isn’t about trying to get useful intelligence out of you, it’s about getting propoganda,” said Matthew Alexander, a 14-year veteran of the air force and leader of an elite interrogations team in Iraq and author of “How to Break a Terrorist.” (Matthew Alexander, seen here on The Daily Show, uses a pseudonym.) Sleep deprivation may be used for no longer than 48 hours in SERE training, according to the inspector general report. “They’re just trying to break down your will.”

“I think people misinterpreted that,” Alexander added. “Mitchell and Jessen, the psychologists, they took that learned helplessness theory, but they’d never done an interrogation. They were so off base.”

In recent months, reports from Amnesty International USA, the InterAmerican Commission on Human Rights, the National Immigration Law Center, the American Civil Liberties Union of Southern California and the law firm of Holland & Knight have found, following exhaustive studies, that while the number of immigrants in detention has tripled from 1996, detainees often don’t get hearings to determine if their detention is warranted; detention conditions violate “basic human rights and notions of dignity”, and the Immigration and Customs Enforcement Agency in many cases doesn’t even follow its own rules governing detention centers and conditions.

The bills would require DHS to issue enforceable rules governing detention in 15 different areas, including access to medical care, telephones, the treatment of children and other particularly vulnerable populations, and the use of force against detainees. A Detention Commission would conduct investigations and report on compliance.

“Having met with dozens of detained immigrants across the United States, it is clear that the one consistency is the utter disregard for their humanity,” said Sarnata Reynolds, AIUSA’s policy and campaign director for refugee and migrant rights, in a statement released yesterday.  “These bills protect the dignity of those in the detention system by requiring that they be detained based on individual circumstances, not blanket policies that tear families apart without any consideration for the consequences.”

A guard tower at the Guantanamo detention center. (defenselink.mil)

It was a blind quote hitting the civil-libertarian solar plexus. Bad enough that, as ProPublica’s Dafna Linzer and The Washington Post’s Peter Finn reported late on Friday afternoon, the Obama administration was readying an executive order for a system for preventive detention in terrorism cases. President Obama himself had indicated in a May speech at the National Archives that he wanted to seek legislation toward the same idea. But an administration official told the reporters that those same opponents of preventive detention had given the president cover to pursue it: “Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order.”

Illustration by: Matt Mahurin

As it happens, White House officials sought to walk the story back, with officials saying that the administration wasn’t drafting an executive order and was unlikely to issue one, as press secretary Robert Gibbs said Monday. But representatives of civil liberties groups were still stunned to see the quote. At a meeting with the administration’s task force on detentions policy earlier this month, most of the major civil liberties groups explicitly urged the administration to instead either charge Guantanamo Bay detainees and future terrorism captives with crimes in federal court or release them. Now, with the prospect of a new administration creating a regimen for holding detainees for an unbounded period without facing charges — a major target for civil libertarian fights with the Bush administration — on the horizon, several groups that hailed Obama’s election are vowing to fight the proposal.

“Any continued policies of prolonged detention without trial of Guantanamo detainees simply fails to turn the page on the counterproductive policy of the Bush administration,” said Human Rights First’s Devon Chaffee, who attended the meeting with the task force. “We oppose any prolonged detention without trial beyond what is already authorized under the laws of war. If an individual committed acts of terrorism, they should be tried in our regular federal courts.”

On June 9, a task force empanelled by Obama’s January 22 executive order to recommend changes to U.S. detention policy for “violent extremists” invited civil liberties groups to the Justice Department for a meeting led by Army Col. Mark Martins, a former legal adviser to Gen. David Petraeus in Iraq. Representatives of Human Rights Watch, the ACLU, Human Rights First, New York University’s Brennan Center, the Constitution Project, Amnesty International, the Center for National Security Studies, the Open Society Institute and the National Association of Criminal Defense Lawyers spent about two hours making a case against preventive detention, as well as offering their perspectives on military commissions, the repatriation of Guantananamo detainees, and the detention facility at Afghanistan’s Bagram Air Field.

According to attendees, the meeting was respectful and solicitous. Task force members opted to listen to civil libertarian concerns far more than they chose to present their own views, offering the occasional hypothetical example to test the contention that federal civilian courts would be adequate to handle terrorism cases. “They were very thoughtful, engaging, reflective and genuinely interested in our input,” said one participant who declined to be identified. “I didn’t get the sense that they were just rubber-stamping, so they could say they met with human-rights groups.”

The meeting was designed to be a forum for a subsection of the task force to hear from the civil liberties organizations that have been distressed by emerging administration perspectives on detention since March, when the Justice Department filed a brief in federal court claiming authority to detain terrorism captives outside of the criminal justice system. “A very strong message given at that meeting was that the vast majority of the civil-liberties community oppose any form of prolonged preventive detention without trial,” said Chaffee. “Significant emphasis was placed on the ability of federal civilian courts to handle complex terrorism cases.”

Numerous attendees said that they opposed any vehicle, either legislation or an executive order, to produce an indefinite-detention system. Some made the additional point that seeking legislation for a preventive detention strategy would allow a Congress that shows relatively little concern for civil liberties to expand the parameters of any administration approach to detention in unpredictable ways. “Given the political situation in Congress, things could get even worse, and the preventive detention bill could be even broader and more problematic than what the president suggested in the National Archives speech,” said a different participant in the meeting who also declined to be identified. The administration official quoted by Linzer and Finn “somehow misinterpreted” the message, this participant added, since support for a executive order on preventive detention was “not at all what was conveyed by anyone.”

Whether or not an executive order on preventive detention is forthcoming, Obama indicated in his May speech at the National Archives that he embraces the logic of some form of detention for terrorism detainees outside the federal civilian courts, speaking of “detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.” The same speech pledged to “work with Congress” to come up with a legal regime for detention, though the president did not explicitly indicate if such a system would include future alleged-terrorist captives in addition to Guantanamo detainees.

Accordingly, Benjamin Wittes, a senior fellow at the Brookings Institution, said that he was disinterested in the “continuing debate over whether preventive detention is a good idea or a bad one,” since “the only serious question is what the legal framework for detention will be, not whether it will happen.”

To that end, Wittes released a proposal on Friday for legislation on non-criminal terrorism detention that seeks to give the administration latitude to detain suspected terrorists beyond the battlefields of Afghanistan and Iraq but also impose judicial and congressional oversight on a process that the Bush administration left virtually unbounded, and which the Supreme Court subsequently restrained. His proposal, co-authored with Colleen A. Peppard, creates a 14-day period of detention without charge that could be expanded on a repeatable six-month basis by the federal District Court for the District of Columbia and defines the class of potential detainees in terms of actions they take “working on behalf of the enemy” as defined by acts of Congress.

Wittes added that he had discussed his ideas for preventive detention with the administration task force but declined to elaborate.

Administration officials who would not speak for attribution cautioned that much remained undecided by the administration beyond what Obama had stated publicly, as debate remains ongoing, both within the task force and within the administration more broadly. One knowledgeable source pointed to career government attorneys across the Justice, Defense, and Homeland Security Departments and the National Security Council who had been working on detainee and interrogation issues for years — officials who had been as critical of Bush administration legal excesses as they are Obama-era enthusiasm for fundamental change — as key figures in determining the nuts and bolts of the internal debate. “All those people, consistently, have been warning that the way we pick these people up can’t be separated from the way we deal with them,” the source said. “Schematically, they’re in the conservative-Democrat camp. You wouldn’t find them fundamentally different than Ike Skelton or Carl Levin,” referring to the chairmen of the House and Senate armed services committees.

Even so, human rights groups are now preparing to oppose any forthcoming legislative proposal or executive order on preventive detention. “We don’t want the administration to seek to legalize a system of preventive detention by executive order or by statute,” said Sharon Bradford Franklin, a senior counsel at the Constitution Project who attended the June 9 meeting.

The Center For Constitutional Rights, one of the few major civil-liberties groups that did not attend the June 9 meeting, “would mobilize to oppose any effort to create a preventive detention scheme,” said spokeswoman Jen Nessel. “Whether it’s in the form of an executive order or legislation, indefinite detention without charge, trial or due process goes against our most fundamental principles of justice and the rule of law.”

Michael Price, the national security coordinator for the National Association of Criminal Defense Lawyers and another meeting attendee, said the administration had yet to present a robust case that there was indeed a cohort of detainees who could not be responsibly tried in federal courts, contending that classified information would be adequately protected under statutes like the Classified Information Procedures Act. (Critics contend the act lends too much deference to a defendant.) “An executive order, I think, is dangerous,” Price said. “Congress getting legislation to pass preventive detention is also dangerous, but not any more dangerous than preventive detention itself. But we will oppose either way.”

Price continued, “I don’t think opposition with the administration is necessarily the right way to categorize this, but I think we’d be strongly opposed to the idea of the proposal.”

Cully Stimson, a former deputy assistant secretary of defense for detainee policy in the Bush administration, said he was pleased by both the agitation of the civil-liberties community and the early signals by the Obama administration about preventive detention. “The Obama guys and gals have the facts now — they’ve seen the files, read the cooperation agreements, been read into the programs,” Stimson said. “Even the human-rights advocates who were throwing spitballs at me and other Bush people when I was in [government] who are now on the task force, they clearly are in a better place factually than when they were sitting on the sidelines. Who cares what the ACLU thinks?”

Liza Goitein of the Brennan Center, another June 9 meeting participant, also rejected any preventive detention scheme. But she was heartened that the question appeared not to be settled. “It’s clear that the administration is still struggling on this issue,” Goitein said. “I can see that in the difference between what Obama said in the National Archives speech seeking legislation and then the report of the executive order. It’s safe to say the administration has not come up with a final plan. As long as that’s the case, there’s some hope that there won’t be a preventive detention regime.”

“It’s almost what’s your pleasure, what part of the body would you like to hurt,” Arlan Ettinger, president of Guernsey’s Auctions in New York, told Reuters. “As brutal as these things are, it’s history and if these items get dispersed that would be gone.”

Among the items on the auction block:

[A]n arm clamp with spikes, a chair with spikes, heavy iron masks, and a metal mitten that could be made red hot in a fire and then put on someone’s hand.

The collection was purchased by a Norwegian Holocaust survivor living in the United States in the 1950s and is now being sold by heirs.

And who knows, auction attendees might just run into certain former senior Bush administration officials.

The Bush administration, of course, was extraordinarily secretive about Gitmo, allowing only carefully circumscribed guided tours of model parts of the facility for human rights workers and journalists. Even lawyers representing Gitmo detainees were not allowed to meet privately with their clients and had to turn over their notes for inspection before leaving the facility.

Now, the heads of the ACLU, Human Rights First, Human Rights Watch and Amnesty International are following up on Obama’s promises to “immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with [Common Article 3 of the Geneva Conventions],” and making their own request for “full access to the Guantánamo Bay detention camps so that we may independently review and report on the conditions of confinement there and make concrete recommendations for change.”

Given his big promises, it’s hard to see how President Obama — even under Defense Secretary Robert Gates, a holdover from the Bush administration — will be able to deny their request.

“Amnesty International USA believes that the victims of the attacks of 9/11 have a right to justice, and the guilty plea of Khalid Sheikh Mohammed and some of his co-defendants does not provide real justice nor the truth. The organization has stated that the military commission system is fundamentally flawed. Any guilty pleas arising from its proceedings do not legitimize these trials. A guilty plea could only be accepted if it was made in a fair trial conducted under procedures that adhere to domestic and international standards, such as a U.S. federal court. Amnesty International continues its calls for all the detainees in Guantanamo to be either released or retried in U.S. federal courts.”

As Josh Micah Marshall at Talking Points Memo reported Saturday, Rep John Conyers (D-Mich), chairman of the House Judiciary Committee wrote an angry letter to Michael Chertoff, secretary of the Dept. of Homeland Security, saying the disclosure, by at least one “federal law enforcement official,” according to The AP, was “very disturbing” and warrants an investigation.

In fact, the disclosure wasn’t just disturbing –- it was either illegal, or it was approved directly by the U.S. attorney general. And, it endangered Onyango and any of her family that continue to live in Kenya.

According to the U.S. Code of Federal Regulations, 8 CFR 208.6, it is illegal to disclose that a noncitizen has applied for political asylum, without her explicit consent “or at the discretion of the attorney general.”

The Supreme Court, in United States v. Ray, explained the reason: because the applicant or her family could be subject to retaliation in their home country.

As an immigration authority fact sheet, cited by the court, explains: “Public disclosure of asylum-related information may subject the claimant to retaliatory measures by government authorities or non-state actors in the event that the claimant is repatriated, or endanger the security of the claimant’s family members who may still be residing in the country of origin.”

According to Amnesty International, the last year in Kenya has seen a crisis of deadly political violence and grave human rights violations.

In other words, this leak wasn’t just a typical ugly attack against the Democratic presidential nominee — it may have been an unusually dangerous one.