Today’s Kagan files are broken up with headings sure to appeal to GOP lawmakers and aides eagerly awaiting a “smoking gun”-type revelation that could complicate her upcoming confirmation hearings. More than a dozen bundles of files deal with abortion, and another half-dozen touch on gun ownership issues.

But at least one Senate Republican didn’t need to wait for this afternoon’s Kagan documents to draw his own conclusions.

In a morning statement, Judiciary Committee ranking member Jeff Sessions (R-Ala.) said the nominee’s memos from her clerkship under the late Supreme Court Justice Thurgood Marshall reflect “a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution.”

Sessions continued:

Ms. Kagan has never been a judge, and only briefly practiced law—spending far more time as a liberal advocate than a legal practitioner. Given this thin legal resume, her candid memos as a Supreme Court clerk arguably provide some of the best insight into how she would rule as a Supreme Court Justice. These troubling memos have to be carefully examined, and it is now doubly important that the White House fully produce the overdue documents from the Clinton Library in order to shed further light on the philosophy Ms. Kagan would bring to the bench.

It’s enough to make one wonder if Sessions, who requested Kagan’s Clinton-era files two weeks ago, knew what would come just hours after his statement was made. The Alabama Republican has vowed to hold up Kagan’s scheduled June 28 confirmation hearing in the Judiciary panel “unless the files were produced in time for senators to peruse them well in advance,” according to the AP.

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.”

The short answer, according to Jameel Jaffer, director of the ACLU’s national security project, is that the memos released last week were part of a “universe” of requested memos listed in an ACLU FOIA petition whose scope “ends in 2005,” putting our memo out of play. That scope was agreed to by the government and the ACLU after years of litigation. “There are still dozens of memos responsive to our original FOIA that they’ve not released,” Jaffer said.

Still, the ACLU in December filed another FOIA request to get up to date with what the Bush administration authorized the CIA and the Defense Department to do to detainees after 9/11. The organization asked for some specific memos, but also phrased its request for “catch-all” material, Jaffer said, “broad enough to encompass the memo you reported on.”

Jaffer added that he didn’t know about the 2007 OLC memo before TWI broke the story of its existence. “It sounds like this memo is central to the narrative,” he said. “The question of what methods the CIA believed to be permissible is a question we still only have a partial answer to. We know what [the administation] authorized in 2002, 2003 and 2005, but there’s still a lot of information about what happened to CIA detainees after 2005 [that isn't clear] And it sounds like this memo sheds a good deal of light on that question.”

President George W. Bush (WDCpix)

A wealth of new details emerged Tuesday about how techniques designed to help captured U.S. troops resist torture formed the basis for the post-9/11 interrogation policies of the Bush-era Pentagon.

Instructors of those techniques proved to be eager in 2002 and 2003 to disseminate them to an emerging crop of inexperienced military interrogators facing the prospect of wresting information out of new captives. “I believe our niche lies in the fact that we can provide the ability to exploit personnel based on how our enemies have done this type of thing over the last five decades,” said Joseph Witsch, an instructor for the Joint Personnel Recovery Agency (JPRA), a component of U.S. Joint Forces Command that oversees the so-called Survival, Evasion, Resistance and Evasion (SERE) program for U.S. special forces, during a 2002 training session for U.S. military interrogators, according to a newly released report.

Illustration by: Matt Mahurin

Details like these came to light when an unclassified version of a Senate Armed Services Committee report on the Pentagon’s treatment of detainees in the war on terrorism (pdf) was made public late Tuesday. An unclassified executive summary of the report, released in December, gave the outlines of the narrative, an account of how extreme interrogation techniques never before considered legal for U.S. personnel to apply became widespread within the military. But the full extent of the story was unclear from the 21-page summary of the 200-page report.

JPRA, a previously obscure outpost inside the military command responsible for making the U.S. military services fight as a single entity, first emerged last year in committee hearings as a key element in the United States’ embrace of physical interrogation methods. Responsible for overseeing the SERE program around the military services, in which instructors in very controlled conditions teach U.S. troops how to endure and resist torture in enemy captivity. Such techniques, used by the Chinese and North Korean communist regimes, include waterboarding, sleep deprivation, and forced exposure to extremes of temperature — all of which were recommended by JPRA and SERE officials to U.S. interrogators.

Instructors in the SERE program and their overseers in JPRA are not trained interrogators. Before 9/11, SERE and JPRA never focused on applying their resistance training to interrogate captured enemies. “SERE instructors are not selected for their roles based on language skills, intelligence training, or expertise in eliciting information,” the committee report specifies.

Yet after 9/11, with President Bush’s declaration that the Geneva Conventions would not apply to al-Qaeda and Taliban captives, the Pentagon’s then-general counsel, Jim Haynes, began asking JPRA how SERE’s expertise could assist U.S. interrogators, a relatively small U.S. military cohort. JPRA officials, eager to help with U.S. military efforts against al-Qaeda, sought to help with minimal prompting. Col. John “Randy” Moulton proposed in February 2002 that JPRA send a team to the newly established detention and interrogation facility to create a “short course” about “interrogation from the resistance side.” It would be the first of several such courses developed throughout 2002 and 2003, in which JPRA and its SERE “resistance” experts helped U.S. military and, in some cases, CIA interrogators, “reverse-engineer” SERE procedures for use on detainees in Guantanamo Bay, Afghanistan, Iraq and, perhaps, the network of CIA secret prisons where the agency held “high-value” al-Qaeda captives.

A key figure is a SERE psychologist named Bruce Jessen. The chief psychologist frequently advised officials at Guantanamo Bay and the emerging cadre of U.S. interrogators in techniques designed to break U.S. soldiers. In April 2002, he created a Guantanamo Bay “exploitation draft plan” to provide SERE training to Guantanamo interrogators under his direction. He proposed the creation of an “exploitation facility” at Guantanamo that would be “off limits to non-essential personnel,” such as the press, the International Committee of the Red Cross, or foreign observers. He advised that “the “the only restricting factor” on what techniques interrogators ought to be permitted to employ “should be the Torture Convention,” though he defended the use of physical force in interrogations. He repeated that message to interrogators and Guantanamo officials throughout 2002.

The influence of Jessen and SERE was not limited to military interrogations. In July 2002, the Senate report discloses, he was sent to “another government agency” to offer advice; and a JPRA team assisted a squad from “another government agency” during the first six months of 2002 that would be “sent to interrogate a high level al Qaeda operative.” “Another government agency” is a widespread euphemism for the CIA. The month after Jessen went to advise the undisclosed agency, the Justice Department’s Office of Legal Counsel issued a secret memorandum, disclosed last week, instructing the CIA as to what interrogation techniques it considered to fall short of statutory prohibitions on torture. It summarized what the CIA proposed for its interrogation of Abu Zubaydah, considered to be the highest-ranking al-Qaeda member in U.S. custody. “Zubaydah will have contact only with a new interrogation specialist, whom he has not met previously, and the Survival, Evasion, Resistance, Escape (“SERE”) training psychologist who has been involved with the interrogations since they began,” wrote Jay Bybee, the head of OLC, in an August 1, 2002 memorandum. It is unclear but likely that Jessen is the psychologist to which Bybee refers.

JPRA and SERE officials thought of themselves as a unique trove of information and training for U.S. interrogators. The report quotes one official as saying, “JPRA has the sole repository of the required skill set” for interrogating detainees, even though the FBI has interrogated criminals for over 100 years. At an interrogation training session in the summer of 2002, with Guantanamo officials present, SERE officials “drafted a memo proposing the use of physical and psychological pressures at [Guantanamo], including some pressures … that do not follow the Geneva Conventions,” according to the report.

Around that time, an aide to Pentagon chief lawyer Haynes, David Shiffrin, requested JPRA’s deputy commander to send him memoranda outlining what techniques SERE graduates had to endure. The response included “the facial slap, walling, the abdomen slap, use of water, the attention grab and stress positions.” One attached memo used the phrase “physical and/or psychological duress” interchangeably with “torture,” the report says.

By September 2002, Pentagon officials and Guantanamo interrogators had grown “frustrated” with their inability to collect as much useful intelligence from interrogations as they had expected from Guantanamo detainees, according to the report. A JPRA-sponsored training session for interrogators that month introduced the concept of exploiting “phobias” and playing off cultural sensitivities of Arabs and Muslims. JPRA instructor Joseph Witsch warned a superior, “We are out of our sphere when we begin to profess the proper ways to exploit these detainees,” but the training continued. Witsch later acknowledged to a Pentagon working group on interrogations, “The physical and psychological pressures we apply in training violate national and international laws. … I hope someone is explaining this to all these folks asking for our techniques and methodology!”

Several Pentagon officials were asking for precisely that. A “Behavioral Science Consultation Team” established at Guantanamo and in frequent contact with SERE advisers counseled a Guantanamo working group on whether the interrogators had “authorization to use interrogation approaches that had not been taught to interrogators” at the U.S. Army’s intelligence center and were not contained in its Field Manual on interrogations. One SERE adviser told the BSCT, “Bottom line: the likelihood that the use of physical pressures will increase the delivery of accurate information from a detainee is very low.” Yet the working group approved a decision — over some BSCT and SERE reservations — to recommend the use of expanded techniques on a high-value detainee named Mohammed al-Qatani that were “influenced by SERE,” according to the report.

That request went up through the chain of command in October, ultimately reaching Defense Secretary Donald Rumsfeld in December 2002. The report documents Haynes’ ability to stop a review of the techniques’ legality by a legal adviser to the Joint Chiefs of Staff, after representatives of the uniformed military made it clear that they considered the techniques to be illegal. As has been documented in numerous Pentagon inquiries stretching back to 2004, Rumsfeld ultimately recommended in April 2003 the use of several extreme interrogation techniques, including stress positions, dietary manipulation, “long time standing” and other techniques that are now revealed to have originated from SERE. Similarly, while Rumsfeld declared that those techniques were applicable only to “military and civilian interrogators assigned to Joint Task Force Guantanamo Bay, Cuba,” the extreme pressure for intelligence in Iraq later that year sent Guantanamo Bay’s commander, Maj. Gen. Geoffrey Miller, to Iraq, where he delivered a list of Guantanamo-approved techniques to the Iraq war commander, Lt. Gen. Ricardo Sanchez, with the explicit instruction to “Gitmo-ize” intelligence operations. A 2004 report by former Defense Secretary James Schlesinger found that instruction to be a central cause of the torture at the Abu Ghraib detention facility in late 2003.

The release of the Senate Armed Services Committee report comes on the heels of Thursday’s disclosure of four long-secret Justice Department documents outlining CIA interrogation techniques. Sen. Carl Levin (D-Mich.), chairman of the committee, explained in a statement that the two rounds of disclosure were coincidental. The Defense Department had been combing through the report since November 20 and only now approved it for release, Levin said, with some significant redactions of operational and other detail.

“The record established by the Committee’s investigation shows that senior officials sought out information on, were aware of training in, and authorized the use of abusive interrogation techniques,” Levin said. “Those senior officials bear significant responsibility for creating the legal and operational framework for the abuses. As the Committee report concluded, authorizations of aggressive interrogation techniques by senior officials resulted in abuse and conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody.”

Yesterday, as journalists, lawyers and human rights advocates were still digesting the details of some of the grisly CIA interrogation techniques set out and justified in the four most recently released legal memos, The New York Times called for Bybee’s removal, saying he “is unfit for a job that requires legal judgment and a respect for the Constitution.”

Today, Rep. Jerold Nadler (D-N.Y.), chairman of the House Judiciary Committee’s Constitution, Civil Rights, and Civil Liberties Subcommittee followed suit and told The Huffington Post that the memo Bybee wrote justifying the CIA abuses “was not an honest legal memo. It was an instruction manual on how to break the law.”

This isn’t the first time critics have called on Congress to get rid of Bybee. Back in January, Yale law professor Bruce Ackerman called for Bybee’s impeachment in Slate.

The Center for Constitutional Rights is now using the growing momentum to call on its supporters to write to Rep. John Conyers (D-Mich.), the House Judiciary Committee chairman, to “demand they hold a hearing to determine whether grounds exist for Bybee’s impeachment.”

So could it happen?

Although federal judgeships are considered lifetime appointments, Article III of the U.S. Constitution provides only that judges “shall hold their Offices during good Behavior.” And it’s up to Congress to define that.

Still, impeachment is rare: only 13 federal judges have ever been impeached, and it hasn’t happened in about 20 years.

What was actually revealed in yesterday’s memos was the nature of the Bush administration’s efforts to legalize and justify the “harsh interrogation techniques” that we mostly knew about already. And it’s not terribly difficult to imagine why some folks would want those legal efforts kept under wraps.

That’s apropos of the chorus of Bush officials — see this Politico piece, for instance; or this Michael Mukasey/Mike Hayden op-ed — who are saying that Obama irresponsibly revealed CIA torture techniques. He revealed them, in all likelihood, because he’s forsworn them, and to move on. As Greg says, we knew most of this stuff had happened. (Obama noted the same thing yesterday.) What really rankles these people is that their ability to harmonize putting someone in a “confinement box” with insects with statutes and treaties that expressly forbid torture is now entirely on display.

Let’s put it another way. One thing that the August 1, 2002 Yoo/Bybee torture memo — the one released in 2004 — focuses on is the alleged difficulty of defining what interrogation procedures would “shock the conscience” of a reasonable individual, since that standard is rather salient when it comes to the federal anti-torture statute. By taking a deliberately agnostic stance on the prospect of ever finding such a consensus around “reasonableness” — hey, it’s a wide world out there, what shocks me might not shock you, so who’s to say — you wind up with absurdities like rubber-stamping as humane our confinement box of insects. As it happens, when a conservative friend of mine read that the Justice Department had blessed putting people in a confinement box of insects, he IM’d me to say “Holy ****.” Miracle of miracles: putting someone in a confinement box of insects makes people say Holy ****. We have our reasonable-individual standard reaction.

Indeed, the only person who doesn’t mind putting someone in an enclosed space with insects is Buffalo Bill from “The Silence of the Lambs.” The memos reveal that for a long time, the government of the United States adopted his moral standards. If you had been guided by that legal reasoning, you’d do whatever was in your power to keep it from the public, since you know what they’ll say.