So where is it?

The report, prepared by the Justice Department’s Office of Professional Responsibility, reviews the conduct of former Office of Legal Counsel lawyers John Yoo, Steven Bradbury and Jay Bybee, who is now a federal court of appeals judge.  All three helped produce memos that approved treatment of detainees that Holder has said is clearly illegal. Enough information has been leaked already that we know that its earlier versions, at least, were highly critical of the OLC attorneys’ work and could lead to disciplinary actions against the lawyers by state bar associations. If the review finds that the lawyers deliberately slanted their analysis of the law to reach a desired conclusion, it could also renew calls for their prosecution.

By the end of the day on Monday, the Department of Justice still had not produced the promised report.

In June, Holder similarly said that the report would be released “in a matter of weeks.”  That was almost six months ago.

Take the nomination of Dawn Johnsen, Obama’s pick to the head the Office of Legal Counsel, which provides critical legal advice to the president. The OLC, of course, is the same office that got into all sorts of trouble under the Bush administration, and several of its former lawyers are the subject of a much-awaited report from the Justice Department’s Office of Professional Responsibility, which reportedly has concluded that the lawyers violated legal ethics in recommending President George W. Bush permit the abuse of detainees and other suspensions of constitutional rights in the so-called “war on terror.” That report, although reportedly drafted last year, is apparently still being reviewed by the very lawyers it apparently censures, and is likely being edited and potentially watered-down as a result.

But even as President Obama says he wants to look forward, not back, he’s not exactly pushing very hard to get a new director for that Office of Legal Counsel confirmed so she can lead his legal department on its forward march. The nomination of Johnsen, a highly-respected law professor who was second-in-command at OLC under President Clinton, was voted out of the Senate Judiciary Committee with full Democratic support in March. She has yet to get a full Senate vote — though back in May, Attorney General Eric Holder called her confirmation “probably my top priority.”

Republicans have made clear that they’ll fight the Johnsen nomination and slow the voting process down, even though it seems clear Democrats have enough votes to confirm her. GOP lawmakers have painted Johnsen as a radical for publicly challenging some of the advice given by the Office of Legal Counsel during the Bush years. And during her confirmation hearings, some Republicans seized on the fact that Johnsen was a lawyer for the National Abortion Rights Action League (NARAL) early in her career, and 20 years ago was one of ten co-authors on a brief in which there was a footnote that some Republicans found objectionable.

With the health care debate ongoing and the president staking much of the success of his first term on its outcome, the Obama administration may not have much interest in pushing the Johnsen nomination just now, since Republicans will likely insist on cloture — and the 30 hours of debate that comes with it — which would detract from the president’s current mission.

As a result, according to the White House and Senate staffers, a vote on the Johnsen nomination isn’t even on the calendar yet.

iStockphoto

On the same day that the government produced the 2004 CIA inspector general’s report on interrogations, it also turned over seven more memos and letters from the Justice Department’s Office of Legal Counsel. The memos released on Monday were the Justice Department’s legal justifications for continuing to use those controversial interrogation techniques, despite a new law passed by Congress and an intervening landmark Supreme Court ruling that governs U.S. detentions overseas.

The Office of Legal Counsel is where John Yoo and Jay Bybee, beginning in 2002, wrote a series of what came to be called the “torture memos,” defining torture so narrowly and the law so permissively that near-drowning, prolonged sleep deprivation, stress positions and many more “enhanced interrogation techniques” were deemed legal. Yoo also concluded that the Bill of Rights didn’t apply to certain executive action during wartime, even in the United States.

Illustration by: Matt Mahurin

The more recent documents, written by Steven Bradbury, who became acting assistant attorney general and head of the OLC in 2005, were the Justice Department’s attempts to deal with the ways the law had changed in the intervening years – and the clarifications from the Supreme Court that certain basic international laws, like portions of the Geneva Conventions, do apply to terror suspects held abroad.

What experts say is surprising about the 2006 and 2007 memos released on Monday, however, is how little the legal analysis changed, despite the new legal backdrop that had emerged, and how selectively the lawyers chose which laws and cases to apply.

In 2005, after photographs surfaced showing U.S. troops abusing Iraqi inmates at the Abu Ghraib prison in Baghdad, Congress passed the Detainee Treatment Act specifically to outlaw the “cruel, inhuman or degrading treatment” of detainees that was plain for all to see. The next year, the Supreme Court ruled in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applies to “war on terror” detainees. Attorney General Alberto Gonzales had famously called the Geneva Conventions a “quaint” relic of the past.

But the CIA still wanted to use many of the controversial interrogation techniques it had adopted, based in part on the advice of two psychologists and businessmen with no interrogation experience. In particular, as is set forth in the recently released Office of Legal Counsel memos, the CIA still wanted to use six techniques, including prolonged sleep deprivation, food deprivation, shackling, forced standing in stress positions, and a variety of “corrective techniques” that include physical slaps and grabs – all of which would be used alone, or in combination.

Despite the intervening change in the legal landscape, legal experts who have reviewed the memos say that strangely, the analysis remained essentially the same.

“It’s surprising how little the analysis in this memo changed from the past memos, notwithstanding the passage of the [Detainee Treatment Act] and the Supreme Court’s decision in Hamdan,” said American Civil Liberties Union national security project lawyer Alex Abdo.

The July 2007 opinion, for example, analyzed whether prolonged sleep deprivation for up to 96 straight hours (or 180 hours in a 30-day period) while a prisoner is forced to stand, shackled, in diapers, and eventually in his own urine and feces violates the Detainee Treatment Act and Geneva Conventions’ prohibitions on “cruel, inhuman and degrading treatment”.

The Justice Department lawyers concluded that it does not violate either law, even if the sleep deprivation is combined with restriction to a 1,000-calorie-a-day diet (half the recommended daily human intake) of liquid formula, and with “corrective techniques” such as the “facial hold,” “facial slap,” and “abdominal slap”.

The rules are not violated because the CIA has determined that such techniques are “safe”, concludes the memo, meaning they cause no “serious,” permanent or long-lasting injury.

The lawyers are confident of that conclusion because “the CIA adapted each of the techniques from those used in the United States military’s Survival, Evasion, Resistance, and Escape (“SERE”) training,” which is “designed to familiarize U.S. troops with interrogation techniques they might experience in enemy custody and to train these troops to resist such techniques.”

Although the lawyers recognize “that a detainee in CIA custody will be in a very different situation from U.S. military personnel who experienced SERE training, the CIA nonetheless found it important that no significant or lasting medical or psychological harm had resulted from the use of these techniques on U.S. military personnel over many years in SERE training.”

That’s the same reasoning the OLC used to justify waterboarding and other techniques in its Aug. 1, 2002 memo.

The Aug. 31, 2006 Office of Legal Counsel memo goes on to say that the techniques don’t “shock the conscience” – the same standard the lawyers used in 2005 to say the CIA’s interrogation techniques didn’t violate the international Convention Against Torture.

In effect, in the Justice Department’s view, despite the new law and Supreme Court interpretation, nothing had changed.

“Especially following the DTA you’d think it would no longer be okay to beat someone up for information,” said Abdo. “At the end of the day, that for me is what this 2007 memo amounts to. The techniques of sleep deprivation, dietary manipulation—you’d think that was precisely what Congress was focused on when it passed the DTA. It’s surprising how much of the techniques survived the new law,” he said. The memo is “dodging bullets fired at the CIA by Congress and the Supreme Court.”

The lawyers similarly interpreted the Geneva Conventions to add nothing new to the equation. In 2006, the Supreme Court ruled that Common Article 3 applies to detainees held by the United States overseas, notwithstanding the Bush administration’s strenuous arguments to the contrary. Common Article 3 requires the “humane treatment” of all prisoners. But the July 2007 memo interprets that to not even require the U.S. government to report the prisoners’ existence to the International Committee of the Red Cross, for example.

That’s a strangely narrow reading of the Geneva Convention’s requirements, said Jamil Dakwar, an expert on international law and director of the ACLU’s Human Rights Program. In a “non-international conflict,” which is how the Supreme Court defined the United States war with al Qaeda and the Taliban, “Common Article 3 talks about allowing the ICRC to offer its services,” says Dakwar. If the government does not inform the ICRC of the prisoners’ existence, however, the organization cannot offer any services.

In general, “there’s a gap between the way the United States interpreted international law, and the way the rest of the world interprets it,” says Dakwar. “In non-international armed conflict, human rights law, such as the U.N.’s Covenant on Civil and Political Rights should be applicable,” he said. But the Bush administration said it did not apply, so it examined the techniques only as narrowly as possible under Article 3 of the Geneva Conventions. That several international courts and human rights committees have disagreed with the Bush administration’s conclusion did not alter its analysis.

The International Committee of the Red Cross in its commentaries, for example, stresses that Common Article 3 does not apply in isolation, but in conjunction with the laws of the country where the prisoners are held, and that country’s interpretations of international human rights law. In the OLC memos, however, “the assumption is that we created secret detention, we can’t operate them anywhere but in secret, so this is an excuse to ignore all other laws,” says Dawkar. “So you see here cherry-picking of what kinds of protections the detainees will be afforded.”

Even when the memos rely on U.S. law, the comparisons between terror suspects held for years in secret CIA prisons and detainees held in U.S. prisons with the full panoply of constitutional rights often don’t make sense. For example, the memos evaluate the legality of conditions of overseas detention by relying on cases interpreting the Eighth Amendment prohibition of cruel and unusual punishment, although those cases only pertain to prisoners who have been charged and convicted of a crime in a U.S. court. In these cases, although the memos repeatedly assume that the detainees are “extremely dangerous,” none has even been charged with a crime, let alone convicted of anything. Similarly, cases governing pre-trial detention conditions in the United States, where a suspect is awaiting trial and has a right to a lawyer, aren’t applicable to detainees who may be held incommunicado — unable to speak to other inmates or contact anyone in the outside world — in secret detention with no rights at all for years.

“They pick and choose Supreme Court cases that talk about Eighth Amendment law without addressing the difference in the context,” said Dakwar. “I found that amazing.”

Where the Aug. 31, 2006 memo does note a difference in circumstances, it is to emphasize that terror suspects “are not ordinary accused criminals; instead, they are extremely dangerous, and often quite sophisticated, terrorist enemy combatants detained because they pose a serious and direct threat to the national security of the United States.” The memo thereby assumes the detainees’ guilt, and justifies the conditions of detention accordingly.

The memo also dismisses the impact of being held incommunicado. “They say it doesn’t matter because they have access to books, music and movies,” notes Dakwar. “That is fundamentally unacceptable by all authorities. The fact that you have no contact with other people is the issue. Having newspapers or movies does not make the confinement less severe.”

Indeed, in in the New Yorker in March, Harvard Medical School Professor Atul Gawande cites a range of experts and torture victims, including Sen. John McCain (R-Ariz.), who refer to long-term solitary confinement as more agonizing than physical abuse and ultimately, a form of torture. (Prolonged isolation, Gawande finds, actually creates physical abnormalities in the brain.)

To compare the temporary isolation of a convicted criminal or pretrial detainee to prolonged isolation of a terror suspect in a secret overseas prison, then, makes no sense, says Dakwar. “These are two unparalleled situations,” he said.

In general, the memos “cherry-pick the law and cases that they want to apply,” says Dakwar. For example, the memos rely on interpretations by the International Criminal Court, even though the United States, and particularly the Bush administration, opposed the creation of the ICC and don’t recognize its legitimacy. “Yet it utilized those interpretations in defense of their unjustified practices.”

The other strange thing about the memos is that in parts, they analyze the conditions of the detainees’ confinement — the physical conditions of their cells and whether they were provided with food and water and allowed to sleep, for example — separately from their treatment during interrogations, which sometimes specifically included sleep and food deprivation. And portions of the conditions’ descriptions — for example, the way prisoners’ cells are illuminated 24-hours a day — are redacted, and therefore incomplete. That makes it almost impossible to consider the legality of the conditions as a whole. “Alone, a condition may not amount to a violation, but in certain circumstances, a combination of techniques and methods would constitute cruel, inhuman and degrading treatment, or could even rise to the level of torture,” said Dakwar.

Certain combinations of treatment that violate the Geneva Conventions could also rise to the level of war crimes, which may be why the Office of Legal Counsel was so eager to define all of the CIA’s actions as falling well within the bounds of international law.

Yoo, of course, is the author of the infamous “torture memos” that justified the abuse and torture of terror suspects held abroad in U.S. custody, and authorized the suspension of the Bill of Rights on U.S. soil.

The Associated Press reports that campus police arrested at least four people who refused to leave the university’s law school building.

Yoo reportedly ignored the demonstrators and. after police removed them from his classroom, began teaching.

Yoo returned to UC Berkeley yesterday after spending the spring semester at Chapman University School of Law in Orange County, where his friend John Eastman is the dean.

According to the AP, Berkeley law students are divided over Yoo: while some think he’s a war criminal who should be fired, his classes are still among the most popular at the law school.

The Department of Justice’s Office of Professional Responsibility is expected to release a report any day now analyzing the conduct of Yoo and his colleagues at the Office of Legal Counsel under the Bush administration, and determining whether he violated ethical rules.  The report has been delayed for months while its subjects and the Department of Justice review and amend its contents.

That the Justice Department sought responses from the subjects of the department’s Office of Professional Responsibility report and is now changing the report as a result has been a source of controversy in the past, particularly from Sens. Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.).

They both pressed Holder again today at the Senate Judiciary Committee oversight hearing, asking Holder why it’s taken so long for the report to be finalized and released.

Holder responded:  “My hope is to share as much of that report as I can with members of congress and the public.  There are some potentially classified parts of that report, which we will work to declassify.” Holder promised to release the report “in a matter of weeks. They’re pretty close to the end.”

He added, though, that there will then be a “declassification process” that could further delay the report’s release. “As people look at the work that the OPR has done I’d like them to have the full range of information that OPR considered,” Holder said. “That’s why I think declassification of the report is so important. I wouldn’t want to put an incomplete report in the public.”

As Daphne’s been writing, OPR has been rather solicitous of the Bush administration lawyers who provided legal cover for the CIA’s “enhanced interrogation” program. They got to see the draft, comment on it, and then the office took their perspectives into account. That’s in keeping with standard practice to permit OPR targets a right of due response, the department explained. “In the past,” wrote Assistant Attorney General Ronald Welch to Sen. Richard Durbin (D-Ill.) on May 4, “former Department officials who were subjects of OPR investigations typically have been permitted to appeal adverse OPR rulings to the Deputy Attorney General’s Office.” In keeping with that spirit, Welch continued, former Attorney General Michael Mukasey, his deputy and the OPR chief agreed to “afford the subjects the chance to respond to the report prior to any release.” Such a move, they reasoned, was “fair and reasonably correlates with the process usually applicable to OPR investigations relating to former employees.”

Tell it to Jesselyn Radack. Radack was an early casualty of the Bush Justice Department. In 2001, as a department lawyer in the Professional Responsibility Advisory Office, she advised the FBI that it couldn’t interrogate John Walker Lindh, the so-called American Taliban captured in Afghanistan, without affording him counsel. It happened anyway. Here’s what happened next, according to Jane Mayer in the March 10, 2003 New Yorker:

[Radack] received a “blistering” performance review. It never mentioned her advice in the Lindh matter, but it severely questioned her legal judgment. She was advised to get a new job; otherwise, the performance review would be placed in her permanent file. Radack, who had received a merit bonus the year before, quickly found a job with a private law firm.

Worse, Radack learned that the department made an incomplete filing to the judge in the Lindh case, who had requested the department’s full record of internal discussions on the interrogations. Radack’s attempts to correct the record by providing the judge with the complete discussion ended up getting printed in Newsweek. Then Radack learned, as she recounted this morning in a Daily Kos diary, that OPR had opened a case file on her.

Far from allowing her a chance to contribute to OPR’s investigation,  the office didn’t even solicit her perspective before sending a letter to the Maryland Bar informing it of “possible professional misconduct” on Radack’s behalf. “[W]e take allegations of misconduct by Department personnel very seriously,” OPR Acting Counsel Judith Wish wrote to the Attorney Grievance Commission of Maryland in a letter the commission received on November 5, 2003 that Radack forwarded to me. But OPR hadn’t even reached a conclusion about Radack before going after her license to practice law. “Once our investigation … is complete … we will share the results of our investigation with you should you request you do so,” Wish wrote. Radack forwarded the letter to me this afternoon. Responded Radack’s lawyer on November 25, 2003 in a letter to wish, “We find your admission that OPR has yet to conduct any interviews into these allegations startling.”

Radack says she never got the chance to contribute to OPR’s investigation or appeal its ruling. She was suspended from practicing with her law firm until, eventually, the Maryland Bar Association cleared her name. All this for trying to ensure the Justice Department didn’t mislead a judge about the ways in which it handled the due-process rights of a U.S. citizen. Meanwhile, the attorney general will personally intercede with OPR to ensure that lawyers who provided legal cover for the CIA to engage in practices that the United States had previously prosecuted individuals for committing.

Here’s how Radack summed up the double standard in her dKos diary:

The bottom line is that I am the only Justice Department attorney to be referred to bar disciplinary authorities for advice I gave in a torture case—and my advice was to permit a U.S. citizen his rights.

If OPR wants to live up to its lofty mission of ensuring “that Department of Justice attorneys perform their duties in accordance with the high professional standards expected of the Nation’s principal law enforcement agency,” it can start with itself.

Since then, the two senators (and many others) have been asking about the progress of the investigation, which they learned was completed by the end of the last administration. The OPR’s report, however, which was not released publicly at the request of Attorney General Michael Mukasey.

On Tuesday, Durbin and Whitehouse received assurances from the department that although the subjects of the report — including former OLC head Steven Bradbury, who signed several of the recently released OLC memos authorizing waterboarding and other “extreme” techniques — were allowed to review and comment on the draft, “this opportunity for review and comment was fair and reasonably correlates with the process usually applicable to OPR investigations relating to former employees. . . .Any revisions to the report thereafter will be based upon OPR’s best judgments about the accuracy and fairness of the document.” The comments from the report’s subjects were due on Monday.

The letter from the Justice Department to Durbin and Whitehouse sent yesterday also indicates that the CIA was given a copy of the report to review, both for classification purposes and to comment.

Here’s what Durbin and Whitehouse had to say about that:

While we are disappointed to learn that DOJ allowed Stephen Bradbury to participate in OLC’s ‘review and response’ to the report – despite the fact that he played a leading role in drafting the memos under review – we look forward to the prompt completion of this report, and we are pleased by the strong implication in the letter that former OPR chief Marshall Jarrett’s pledge to release the report will be honored.

We will be interested in the scope of the ‘substantive comment’ the CIA is providing, and the reasons why an outside agency would have such comment on an internal disciplinary matter.

Because the OPR report examines the role of the lawyers at the center of the torture scandal, it’s been much-anticipated by journalists and critics of the Bush administration, who expect it to be sharply critical of the legal opinions provided.

As I noted earlier today, lawyers for the targets of the investigation have reportedly been lobbying the Justice Department to water down the report’s conclusions.

According to two anonymous sources, lawyers for the subjects of the investigation — which include former Office of Legal Counsel officials John Yoo, Steven Bradbury and Jay Bybee, all principal authors of at least some of the so-called “torture memos” — have encouraged senior Bush administration appointees to write and call senior officials in the Department of Justice.

The draft report is expected to harshly criticize the lawyers’ conduct and to recommend disciplinary action by state bar associations against at least two former OLC lawyers who prepared and signed the controversial memos.

As we’ve described earlier in detail, the memos, drafted between 2002 and 2005, provided legal justifications for waterboarding, slamming prisoners against a wall, prolonged sleep and food deprivation, and other techniques that would seem to violate the U.S. and international laws banning torture and “cruel, inhuman and degrading treatment.”

Because the Convention Against Torture requires the U.S. government to prosecute any perpetrators of torture, it’s not surprising that lawyers for the subjects of the Justice Department’s ethics investigation would want to soften the language of the forthcoming report, particularly as pressure mounts to prosecute the lawyers who justified the abusive conduct.

You remember Malcolm Nance, right? He’s a longtime counterterrorist who taught Navy Special Forces in the ways of SERE and testified before Congress in 2007 about what waterboarding was and wasn’t. (His short answer: it’s unambiguously torture.) I asked him in an email how the SERE subjected its students to sleep deprivation. “By definition,” Nance said, “SERE is sleep deprivation” because “we are wailing on you nonstop.” When it came to the technique itself, he continued, “We used simple sleep deprivation techniques like lights, music, horrible noise, work and, if we need[ed] to, hold[ing] a student up.” Not stress positions — unless you define the entire program as sleep deprivation.

SERE training wouldn’t involve subjecting a soldier, sailor or airman to these techniques for prolonged periods. “Stress positions were designed to bring a student to a self induced pain and to get them to understand what prolonged standing and physical contortion was like,” Nance said. “None one did it for any length of time. That’s not the purpose of SERE.”

What’s more, sleep deprivation in SERE is a technique for troops to beat their interrogations, not become more compliant for them. “We want the student to feign an inability to stay awake,” Nance said. “We want sleep deprivation to occur so one cannot be subjected to questioning.” Why? Because when someone is forced to stay awake for too long, “he will say anything or gibberish,” which “really hurts the interrogator.” For the SERE program — which, remember, is about training U.S. troops how to defy their captors and torturers — that’s victory.

None of that proves that SERE wasn’t the basis for CIA’s stress-positions-as-sleep-deprivation regimen. But if SERE instructors and officials reverse-engineered their program to keep someone awake for extended periods, either they didn’t understand that sleep deprivation is bad for acquiring information or they were interested in extracting false confessions. This is all back to the point that SERE trainers are not interrogators, and considering SERE training to be about extracting quality intelligence is to commit a category error. And apparently the CIA committed it.

This is the final paragraph of what Khalid Shaikh Mohammed told the International Committee of the Red Cross:

During the harshest period of my interrogation I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop. I later told the interrogators that their methods were stupid and counterproductive. I’m sure that the false information I was forced to invent in order to make the ill-treatment stop wasted a lot of their time and led to several false red-alerts being placed in the U.S.

The floor of the Central Intelligence Agency headquarters (Wikimedia)

Hidden in plain sight in the Office of Legal Counsel memos on the CIA interrogation is a mystery: How did the “enhanced interrogation” technique of sleep deprivation come to depend on stress positions?

Somehow, between 2002 and 2005, CIA interrogators began using what the International Committee of the Red Cross called “prolonged stress standing” as a means to keep detainees from falling asleep so as to make them docile and cooperative when questioned. What isn’t clear is how that non-intuitive sense of “sleep deprivation,” which was not mentioned in the initial legal authorization for the technique, came into official CIA usage. The Senate Select Committee on Intelligence will examine that development in its ongoing review of CIA interrogations and detentions, according to knowledgeable sources.

Illustration by: Matt Mahurin

In an August 1, 2002 memorandum outlining interrogation methods that the CIA could lawfully employ on captured al-Qaeda operative Abu Zubaydah, then-OLC chief Jay Bybee authorized the technique of sleep deprivation, writing that the CIA’s goal was “to reduce the individual’s ability to think on his feet and, through the discomfort associated with lack of sleep, to motivate him to cooperate” with his interrogators. There is no discussion in the memorandum, declassified by the Obama administration on April 17, about how the CIA would keep Abu Zubaydah awake. Yet Bybee wrote, “it is clear that depriving someone of sleep does not involve severe physical pain within the meaning of the [federal anti-torture] statute. … Based on the facts you have provided us, we are not aware of any evidence that sleep deprivation results in severe pain or suffering.”

But by the time the OLC reevaluated the CIA’s interrogation program in 2005, it revealed that the technique was overwhelmingly physical. “The primary method of sleep deprivation involves the use of shackling to keep the detainee awake,” wrote Bybee’s eventual replacement, Steven Bradbury, on March 10, 2005. “In this method, the detainee is standing and is handcuffed, and the handcuffs are attached by a length of chain to the ceiling.” The detainee’s feet are shackled to a bolt in the floor, giving him a “two-to-three-foot diameter of movement.” His hands “may be raised above the level of his head, but only for a period of up to two hours.” His weight is “borne by his legs and feet during sleep deprivation,” ensuring that he had to keep awake, for if he “los[t] his balance” from exhaustion he would feel “the restraining tension of the shackles.”

Both memos gave legal approval to the use of stress positions like shackling. And both memos contemplated and blessed the use of techniques in combination with each other, finding that no conceivable permutation of combined techniques would constitute “severe pain or suffering” or “severe mental pain or suffering.” But until the release of the 2005 memo, there had been no official acknowledgment that sleep deprivation as practiced by the CIA depended on physically restraining a detainee.

Experts say individual methods of torture are commonly combined, and can have more than one physiological or psychological effect. “Each term, like ‘stress positions,’ covers a wide variety of techniques, but they’re used together,” said Scott Allen, a Rhode Island-based doctor and medical adviser to Physicians for Human Rights. “With the use of a stress position, it’s virtually impossible for someone to sleep.”

The stress positioning was not the only technique involved in the sleep deprivations. According to Bybee in the 2005 memorandum, detainees undergoing sleep deprivation could also be “subject to nudity as a separate interrogation technique.” Whether nude or not, a detainee experiencing sleep deprivation wore “an adult diaper,” which the CIA assured Bradbury would be “checked regularly and changed as necessary.” Since the use of the diaper “is not used for the purpose of humiliating the detainee,” the CIA did not consider it to be “an interrogation technique.” According to the memo, the “maximum allowable duration for sleep deprivation” is “180 hours,” or seven and a half days, “after which the detainee must be permitted to sleep without interruption for at least eight hours.”

A footnote to the memo indicated that there was an associated technique of keeping a detainee awake through “horizontal sleep deprivation.” In that technique, “the detainee’s hands are manacled together and the arms placed in an outstretched position — either extended beyond the head or extended to either side of the body — and anchored to a far point on the floor in such a manner that the arms cannot be bent or used for either balance or comfort.” Interrogators would place similar restraints on the detainee’s legs. “The position is sufficiently uncomfortable to detainees to deprive them of unbroken sleep, while allowing their lower limbs to recover from the effects of standing sleep deprivation,” Bradbury wrote.

It is unclear how the CIA came to believe that shackling and stretching a detainee was an allowable form of inducing sleep deprivation, but senior CIA officials approved of the determination. According to the memorandum, on January 28, 2003, then-CIA Director George Tenet issued two “guidelines,” one on interrogations and one on detentions policy, which are still classified. Hints appear in the May 10, 2005 memorandum: use of “enhanced interrogation techniques” required prior written approval “from the Director [of the] Counterterrorist Center, with the concurrence of the Chief, CTC Legal Group,” and a “contemporaneous record shall be created setting forth the nature and duration of each such technique employed.”

Attempts to reach Tenet for comment were unsuccessful, as were attempts to solicit responses from key Tenet-era CIA deputies. The CIA declined to comment for this article.

In a confidential February 17, 2007 report by the International Committee of the Red Cross — recently obtained and published by the New York Review of Books’ Mark Danner — several detainees formerly in CIA custody who had been subjected to stress-position-based sleep deprivation described the practice. “I was kept sitting on a chair, shackled by hands and feet for two to three weeks,” said Abu Zubaydah. “If I started to fall asleep a guard would come and spray water in my face.” The cell in which he was kept was “kept very cold” through air conditioning, according to the Red Cross report, and “very loud ‘shouting’ music was constantly playing on an approximately fifteen minute repeat loop twenty-four hours a day.” Other detainees said that feces would run down their legs “when they defecated while held in the prolonged stress standing position.”

Several other detainees — 9/11 architect Khalid Shaikh Mohammed and his aide Ramzi bin al-Shibh; as well as Majid Khan, Khalid bin Attash, Abdulrahim Hussein Abdul Nashiri, Mohammed Nazir bin Lep and Encep Nuraman — described being “shackled to a bar or hook in the ceiling above the head for periods ranging from two or three days continuously, and for up to three months intermittently,” according to the Red Cross report. If a detainee managed to fall asleep despite the shackling, “the whole weight of their bodies was effectively suspended from the shackled wrists, transmitting the strain through the arms to the shoulders.”

Allen of Physicians for Human Rights said a number of long-term ailments could emerge from extended use of the stress position. “There’s traumatic arthritis, tendon and muscle problems further down the road,” he said, including long-term nerve damage, swelling of the feet and ulceration, among other ailments.

While much remains unclear about the CIA’s merging of stress positions and sleep deprivations, Allen found one aspect of the story to be less than mysterious. “Common sense will tell you that the longer someone is held in these positions, the greater risk of injury,” he said.