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Let’s Apply These Techniques to Their Authors and See If They Don’t Result in ‘Severe Physical Pain’

One of the Office of Legal Counsel memos that was released today was the famous hidden “Yoo-Bybee Two” or “Second Bybee Memo” from August 2002. Recall that the first August 2002 OLC specified that it was acceptable to apply physical pain to a detainee so long as it was less than the sort of pain emerging from “organ failure, impairment of bodily functions, or even death.” This one, long hidden from Congress and just released by the Obama administration, cashes that out. What sort of techniques could the CIA use on Abu Zubaydah, an al-Qaeda operative in custody who had been shot through the leg during his 2002 capture?

Lots of things, it turns out, including waterboarding him and putting him in a “confinement box,” into which an insect would be place to exploit his fears. The reasoning employed is that of someone determined to show how techniques that would never, ever be acceptable for themselves or their families to be subjected to can be applied to someone else unproblematically. Consider this explanation of how Abu Zubaydah’s placement in the “confinement box” doesn’t constitute severe mental suffering:

… you [the CIA] have informed us [the Office of Legal Counsel] that he [Abu Zubaydah] would spend at most two hours in this box. You have informed us that your purpose in using these boxes is not to interfere with his senses or his personality, but to cause him physical discomfort that will encourage him to disclose critical information. Moreover, your imposition of time limitations on either of the boxes indicates that the use of the boxes is not designed or calculated to disrupt profoundly the senses or the personality. For the larger box, in which he can both stand and sit, he may be placed in this box for up to eighteen hours at a time, while you have informed us that he will never spend more than an hour at a time in the smaller box. These time limits further ensure that no profound disruption of the senses or personality, were it even possible, would result….

[Y]ou would also like to introduce an insect into one of the boxes with Zubaydah. As we understand it, you plan to inform Zubaydah that you are going to place a stinging insect into the box, but you will actually place a harmless insect in the box, such as a caterpillar. If you do so, to ensure you are outside the predicate death requirement, you must inform him that the insects will not have a sting that would produce death or severe pain. If, however, you were to place the insect in the box without informing him that you are doing so, you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severe pain or suffering or even cause his death.

The subtext is, of course, that it’s OK if you let his imagination wander, horribly, when he’s in a confined space and suddenly feels unseen tiny legs crawling over him out of nowhere. For, say, an hour at a time — to be generous to the OLC writers.

Something is very clear from these memos. The Bush administration often liked to say that they needed these memos to remain confidential in order to preserve the principle that the administration should receive the most candid legal advice available. What that secrecy fomented was a culture in which the precise conditions under which a man who had been shot in the leg could be placed inside a cramped box — how many hours? — and subjected to insects crawling on him without it being blatantly illegal. It wasn’t just Abu Zubaydah’s senses and personality that these memos warped.

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