No really.  What is it?  This turned out to be much more difficult to answer then you would think.   Of course, I’m not talking about boiling someone’s feet, or taking a blowtorch to the eyeballs.  Those acts seem to be rather uncontroversially designated as torture.  No, I’m talking about that crown prince of enhanced interrogation; waterboarding.   

 On a philosophical and personal level, I feel waterboarding is torture.  Its purpose is to cause mental anguish enough to cause the subject to spill their guts on plans and operations.  Still, unlike a blow torch to the eyeball or boiling feet, people are lining up to have themselves waterboarded, either for a bet, charity, or publicity.   One wonders why Jackass star Steve-O didn’t think of it.  Vanity Fair journalist Christopher Hitchens did think of it.  As well as Chicago radio personality Mancow (allegedly) and Central Florida radio listener Evil Eye.  Sean Hannity made the offer to do it, but as yet hasn’t made good on his offer.  In a battle of the ratings can Chris Matthews and Glenn Beck be far behind?

On a legal level however, I have grave doubts on if waterboarding meets the standard.   Torture is against Federal law, specifically, Title 18 Part 1 Chapter 113C of the US Code.  However what does it actually say?  The law defines torture this way:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

 It would be difficult to argue in court that waterboarding results in severe mental or physical pain.  No marks or physical damage after all, and no reported mental issues from waterboarding.  Or at least I have not heard of anyone suffering from Post traumatic Stress Syndrome or other long term issue from the interrogation method.

This was the gist of the “Torture Memos” which I had discussed a few weeks ago.  The former Justice Department attorney’s, whom President Obama has decided to give the Kangaroo Court go ahead to the Attorney General, made a fairly good case that waterboarding doesn’t violate US law as torture.  That’s not an argument that waterboarding is a harmless prank, or around the level of good cop/ bad cop when it comes to interrogations, but it does give good evidence that the high bar to define it legally as torture was not met.

And who should confirm that conclusion? None other than Attorney General Eric Holder.  Holder gave away the store a few weeks ago during a Congressional hearing on closing the detainee facility at Gitmo. Holder was being questioned specifically about torture and confirmed again (as he did during his confirmation hearing) that he regarded waterboarding as torture.  Then he was asked if he regarded the waterboarding that Navy Seals received during their training as torture.

Holder:  No, it’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally, all we’re trying to do is train them —

 Rep. Dan Lungren:  So it’s the question of intent?

Holder:  Intent is a huge part.

Lungren:  So if the intent was to solicit information but not do permanent harm, how is that torture?

 Holder:  Well, it… uh… it… one has to look at… ah… it comes out to question of fact as one is determining the intention of the person who is administering the waterboarding.  When the Communist Chinese did it, when the Japanese did it, when they did it in the Spanish Inquisition we knew then that was not a training exercise they were engaging in. They were doing it in a way that was violative of all of the statutes recognizing what torture is. What we are doing to our own troops to equip them to deal with any illegal act — that is not torture.

 Rep. Louie Gohmert:  Whether waterboarding is torture you say is an issue of intent.  If our officers when waterboarding have no intent and in fact knew absolutely they would do no permanent harm to the person being waterboarded, and the only intent was to get information to save people in this country then they would not have tortured under your definition, isn’t that correct? 

Holder:  No, not at all.  Intent is a fact question, it’s a fact specific question.

 Gohmert:  So what kind of intent were you talking about?

 Holder:  Well, what is the intention of the person doing the act?  Was it logical that the result of doing the act would have been to physically or mentally harm the person?

 Gohmert:  I said that in my question.  The intent was not to physically harm them because they knew there would be no permanent harm — there would be discomfort but there would be no permanent harm — knew that for sure.  So, is the intent, are you saying it’s in the mind of the one being water-boarded, whether they felt they had been tortured.  Or is the intent in the mind of the actor who knows beyond any question that he is doing no permanent harm, that he is only making them think he’s doing harm.

 Holder:  The intent is in the person who would be charged with the offense, the actor, as determined by a trier of fact looking at all of the circumstances.  That is ultimately how one decides whether or not that person has the requisite intent.  

   So Holder, seems to be saying, without outright admitting it, that in a legal sense, under Title 18 Part 1 Chapter 113C, the waterboarding that was done by the CIA was not torture.  It’s all about the intent.  And Holder practices what he preaches.  That is the exact position the Justice Department is taking in another case, Demjanjuk v. Holder.  In that case, John Demjanuk, a former Nazi camp guard was fighting deportation to Germany to stand trial on the grounds that considering his age, poor health, and expected bad treatment at the hands of German jailors (ohh irony!),  would be the equivalent of torture due to the “severe Pain and suffering” that he would be expected to endure.  Demjanjuk lost, since the court found there was no established intent (there is that word again!) by German authorities to torture him.

And yet, law is apparently not going to stand in the way of political opportunism both for the Obama administration and the Holder Justice Department.  A leaked DOJ ethics report on John Yoo and Jay Bybee, two of the authors of the infamous torture memos, will recommend disciplinary action.  All because they devised the legal strategy that Holder is using in another case, and has basically admitted in hearings is correct.

Frankly, this is bullshit.  I know it and Attorney General Holder knows it, but with such a friendly press, there is never going to be a gotcha moment in a press conference; at least not one that will receive wide coverage.  Did you catch Holder’s admission on intent in those hearings leading the nightly news?  Neither did I, even though it exposes the hypocrisy of deriding a legal theory in public that the Obama administration is accepting as it’s own on the down low.

Was it worth it?  The waterboarding I mean.  The former Bush administration took a political risk in adopting that technique, and competing camps have battled on cable shows on whether waterboarding was effective or saved American lives.  However the opinion of the intelligence community seems to be yes, it did.  A Washington Post piece describes the “second wave” attack that had been planned for Los Angeles.  A hijacked airliner would have been used to crash into the Library tower in LA.  Thanks to information collected through waterboarding, we were able to stop the plot before it ever got off the ground (pun is mine).

You can have a philosophical argument on if any sort of enhanced interrogation is ever justified, regardless of the lives saved.  Some people, incredibly, would rather see such plots go forward rather than sully their hands at the dirty work of intelligence collection.  But that’s different from the legal argument on whether the three Al Qaeda terrorists that were waterboarded were legally tortured.  I would have to say, based on the preponderance of evidence that they were not.  As I said at the beginning of this piece, I do personally regard waterboarding as torture, however there are several other techniques I may feel personally are torture that just don’t meet the legal standard.  Letting me drink a couple of beers and then not letting me pee for instance.  President Obama has already banned the use of waterboarding as an interrogation technique by executive order, but don’t look for the Congress to try bring up another bill to outlaw the technique, like they did during the Bush administration.  I imagine if there is another 9/11 style attack, that executive order will quietly be rescinded, in a closing the barn door after the horses are out kind of way.

So we now live in a world in which we can waterboard Mancow, or any other publicity whore, but not Khalid Sheikh Mohammed, or if we ever catch him Osama Bin Ladin.  I’m not sure we could even force KSM to listen to Mancow. Maybe if KSM would agree to be waterboarded  for charity…

Zubaydah was water-boarded 83 times  that month.

According to many, including Marc Thiessen President Bush’s former speech writer, the technique was a success. Jose Padilla was apprehended in Chicago on May 8,2002 because of information learned through Zubaydah’s water-boarding sessions.

The problem with this is, in May 2002 Condelezza Rice hadn’t yet given her verbal authorization to water-board and the Justice Department, along with Gonzales and Ashcroft hadn’t yet given the written authority. Rice’s authorization wouldn’t come for another 2 months and the ‘Torture memo’ authorizing  the water-boarding would not be written for another month after that. If Abu Zubaydah gave interrogators the information needed to apprehend Jose Padilla, he did it without being water-boarded or he was water-boarded without consent of the NSA,White House or the justice department.“

one of the top

three leaders

in the [al-Qaeda] organization.

Another question raised is, if Abu Zubaydah was cooperating  and had already given up the information that lead to Padilla’s capture in May, then why did he need to be water-boarded 83 times in August?

In a story from CBS news, dated March 29, 2009, a former senior government officials said that not only was the information Abu Zubaydah gave after being tortured worthless, but it also caused the FBI and CIA to run aimlessly around the globe chasing made up shadows.

President Bush, in order to justify what he was allowing to take place, called Abu Zubaydah “al Qaeda’s chief of operations” and “one of the top three leaders in the organization.”

Not long after his capture though, this was found to be inaccurate..

Abu Zubaida was not even an official member of al Qaeda, according to a portrait of the man

Image via Wikipedia

that emerges from court documents and interviews with current and former intelligence, law enforcement and military sources. Rather, he was a “fixer” for radical Muslim ideologues, and he ended up working directly with al Qaeda only after Sept. 11 – and that was because the United States stood ready to invade Afghanistan.

This is not to say Zubaydah wasn’t a criminal or even part of a terrorist conspiracy, but he was not what he was water-boarded for. He was being water-boarded, so they told us, because he was the number 3 in al Qaeda, he wasn’t cooperating and he knew things that would help us stop the next wave of the attacks.

a senior terrorist leader

and a trusted associate of Osama bin Laden

But was he a high-ranking Al Qeada member with close ties to Osama Bin Laden? Was he uncooperative under normal interrogations? Author Ron Suskind wrote, which the Washington Post has confirmed, that President Bush was so invested in Zubayduh that another question that be must be asked is; is it possible that his ties to Bin Laden or his level of cooperation really didn’t matter at some point?

Suskind writes in his book, “The One Percent Doctrine” which Barton Gellman reviews, that not only was Zubayduh just the ‘go-to guy’ for minor purposes, but  he was also mentally ill.

Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries “in the voice of three people: Hani 1, Hani 2, and Hani 3″ — a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail “what people ate, or wore, or trifling things they said.” Dan Coleman, then the FBI’s top al-Qaeda analyst, told a senior bureau official, “This guy is insane, certifiable, split personality.”

During this time President Bush’s outward proclamations were that we had captured a major leader in Bin Laden’s network. Privately though he wasn’t so sure, at one point even asking George Tenet “‘I said he was important,’

…’You’re not going to let me lose face on this, are you?’

To which Tenet replied, “‘No Sir, Mr. President.’”

The Chinese used water-boarding as a way not to get their enemies to confess their crimes, but to get them to confess to things they had not done. In the middle of 2002, what was going on that would require someone to force a person to falsely confess to something?

The Bush administration applied relentless pressure on interrogators to use harsh methods on detainees in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein’s regime, according to a former senior U.S. intelligence official and a former Army psychiatrist.

It’s true that a link from those responsible for the 9/11 attack  to Saddam Hussein would have made the case for the war in Iraq that much easier, but is that the reason for Zubaydah’s treatment?

In 2002, this country was still reeling from the attacks only a few months earlier, crews were still digging out ground zero and our hearts were still broken into pieces as we remembered  those flag-draped remains being brought home to those who loved them. Would we have tortured anyone to get  any information telling us who, why and if there was another attack coming?

When Zubaydah was water-boarded in 2002, the CIA video-taped it. Some of the question we have today could be answered by just reviewing those tapes. Unfortunately, the CIA’s director, Michael Hayden had them destroyed for security reasons. But there are many principals left who can answer some of these questions.

ABC News Video

One of the 1st questions being, why was the Vice President the one to  give the order to use these techniques and where was President Bush during these discussions and decisions?

Allah had visited

him in his cell

during the night and

told him to cooperate,”

Do we ‘cross the Rubicon’ as my colleague says and open an investigation of the previous administration? And if by doing so, do we damn all other Presidents who come after him? Dick Cheney wants more memo’s released so that his side of the story can be told. But will he stand before congress and give his side under oath is the question. Judging by the last time his administration was under oath in in front of Congress..

In several hours before the Judiciary Committee on Thursday, Gonzales said he had done nothing improper in firing the eight prosecutors, but conceded the case had been badly handled. At the same time, he said 71 times that he either could not recall or did not remember conversations or events surrounding the dismissals.

The answer to that question is not as clear as it should be.

Abu Zubaydah was captured in 2002, he was water-boarded 83 times in August 2002 for not cooperating with interrogators even though 3 months earlier he had given enough information for officials to arrest Jose Padilla. A CIA operative involved in handling high-value al Qaeda targets, John Kiriakou now retired, told ABC News that what happened to Zubaydah was in fact torture, but it was also necessary. He goes on to say  the water-boarding was so effective that Zubaydah broke within 35 seconds and the next day told investigators  that “Allah had visited him in his cell during the night and told him to cooperate” and that… “From that day on, he answered every question,”

If Zubaydah broke after only 35 seconds, broke to the point where he spoke with Allah and Allah told him to answer every question then why did he need to be water-boarded an additional 82 times that month?  The Chinese used water-boarding to make their victims give false confessions.  What question did he either refuse to answer or not know the answer too?

Before the release of the ‘torture memos’ Kiriakou was sure about the number of water-boardings and even had actual quotes made by Zubaydah, but after the memo’s release, ABC contacted him and he had this to say

When I spoke to ABC News in December 2007 I was aware of Abu Zubaydah being water boarded on one occasion. It was after this one occasion that he revealed information related to a planned terrorist attack. As I said in the original interview, my information was second-hand. I never participated in the use of enhanced techniques on Abu Zubaydah or on any other prisoner, nor did I witness the use of such techniques.”

So who has the 1st hand information on this session where these comments were made? Who can answer if  Zubaydah was tortured before NSA Rice gave a verbal nod allowing it? Who can answer if Zubaydah was in fact cooperating with interrogators 3 months before the “Torture memo’s” were even put to paper? Who can answer if he really broke after only 35 seconds of one session or if he needed an additional 82 more before he gave information that had the CIA and FBI running all over the world to confirm? Did traditional interrogation methods work with Zubaydah? Did he give up the information he had on Jose Padilla and Khalid Shaikh Mohammed, did the Bush Administration really get ‘actionable intelligence’ from by using these ‘enhanced’ techniques? The man who really was there, Ali Soufan says he questioned Zubaydah from March to June 2002 using traditional methods and he was successful in gathering actionable intelligence and the information Zubaydah gave up on KSM and Jose Padilla came before he was water-boarded in 83 times in August. Mr. Soufan goes on to say that not only were the enhanced technique unnecessary and useless, they even created a wall between the FBI and the CIA, similar to wall that impeded the sharing of information before 9/11. It was so detrimental to the rival bureaus that the person who knew Khalid Shaikh Mohammad more than anyone else in the government, was  not allowed to speak with him.

There are so many questions that need to be answered and we know the principals involved who need to be asked.  But the biggest question of all is, do we really want the answers? Do we really want to go down that road and if so, just how far are we willing travel on it?

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