Marty Lederman: Lowering the Bar: Well, At Least We're Not as Barbaric as the Spanish Inquisition

Balkinization: Lowering the Bar: Well, At Least We're Not as Barbaric as the Spanish Inquisition

Has it really come to this?

In my previous post I did not adequately convey just how chilling Steve Bradbury's testimony was today. It began early on: Rep. Nadler asked Bradbury how OLC could possibly have concluded that waterboarding is not torture -- After all, isn't the whole point of the technique to induce severe physical pain and/or suffering so as to compel recalcitrant detainees to talk? Doesn't its reported effectiveness -- most victims cannot withstand more than 30 seconds of it -- speak for itself? Of course it's designed to inflict severe physical suffering. And if it does so, as Bradbury concedes, it's prohibited torture, no matter what the justification might be.

Bradbury did not respond directly to Nadler's question (although later he tipped his hand as to why he has concluded that the CIA waterboarding is not torture -- see below). Instead, Bradbury tried to reassure Nadler, and later Representative Franks, that the CIA's waterboarding was not as bad as press reports would have it -- that our variant of the technique is materially distinct from the sort of water torture used by (i) the Spanish Inquisition; (ii) U.S. forces in the Philippines at the turn of the 20th Century; and (iii) the Japanese in World War II. In those earlier historical examples, there was a "forced consumption of a mass amount of water," and occasionally the interrogators would stand or jump on the stomach of the victim, sometimes leading to "blood coming of the victim's mouth." Which apparently crosses the line. Thankfully, we do not do such terrible things.

Some of you will recognize that the technique Bradbury is disclaiming is the one often called the "water cure." The CIA doesn't use that. Instead, the agency apparently is using the less dangerous version of "waterboarding" -- the sort popularized by the French in Algeria, and by the Khmer Rouge. This technique involves placing a cloth or plastic wrap over or in the person's mouth, and pouring or dripping water onto the person's head. The CIA technique is likely a variant of what Darius Rajali, in his encyclopedic and indispensable new book, calls "Dutch choking" (see pages 281-283) -- either that or, in the cellophane variation, perhaps the "dry submarine" (see 284-285). A couple of years ago, Rejali summarized the various water tortures in an e-mail:

[T]he "water cure" admits of several variants:

(a) pumping: filling a stomach with water causes the organs to distend, a sensation compared often with having your organs set on fire from the inside. This was the Tormenta de Toca favored by the Inquisition and featured on your website photo. The French in Algeria called in the tube or tuyau after the hose they forced into the mouth to fill the organs.

(b) choking - as in sticking a head in a barrel. It is a form of near asphyxiation but it also produces the same burning sensation through all the water a prisoner involuntarily ingests. This is the example illustrated in the Battle of Algiers movie, a technique called the sauccisson or the submarine in Latin America. Prisoners describe their chests swelling to the size of barrels at which point a guard would stomp on the stomach forcing the water to move in the opposite direction.

(c) choking - as in attaching a person to a board and dipping the board into water. This was my understanding of what waterboarding was from the initial reports. The use of a board was stylistically most closely associated with the work of a Nazi political interrogator by the name of Ludwig Ramdor who worked at Ravensbruck camp. Ramdor was tried before the British Military Court Martial at Hamburg (May 1946 to March 1947) on charges for subjecting women to this torture, subjecting another woman to drugs for interrogation, and subjecting a third to starvation and high pressure showers. He was found guilty and executed by the Allies in 1947.

(d) choking - as in forcing someone to lie down, tying them down, then putting a cloth over the mouth, and then choking the prisoner by soaking the cloth. This also forces ingestion of water. It was invented by the Dutch in the East Indies in the 16th century, as a form of torture for English traders. More recently it was common in the American south, especially in police stations, in the 1920s, as documented in the famous Wickersham Report of the American Bar Association (The Report on Lawlessness in Law Enforcement, 1931), compiling instances of police torture throughout the United States.

CIA officers who have subjected themselves to the CIA version of the technique -- probably (c) or (d), if Bradbury is to believed -- reportedly have lasted an average of 14 seconds before caving in. Yet no severe physical pain or suffering?! How can that be?

Bradbury later confirmed (see the video at 36:20-37:00) what I've often speculated here: OLC's view is that a technique is not torture if, "subject to strict safeguards, limitations and conditions, [it] does not involve sever physical pain or severe physical suffering -- and severe physical suffering, we said on our December 2004 Opinion, has to take account of both the intensity of the discomfort or distress involved, and the duration, and something can be quite distressing or comfortable, even frightening, [but] if it doesn't involve severe physical pain, and it doesn't last very long, it may not constitute severe physical suffering. That would be the analysis."

Let's be very clear: This so-called "analysis" is at the very core of the OLC justification for waterboarding, and possibly several other components of the CIA program, as well. And it is flatly, 100% wrong, and indefensible, for reasons I have discussed at length. The fact that Judge Mukasey continues to abide by it is a scandal. And the fact that Congress has not said a word about this legal linchpin of the OLC/CIA regime is even worse.

Waterboarding, even the CIA version, entails excruciating and intense physical suffering. That's why they use it. The account by "Scylla", set out below, describes the effects quite well. His conclusion?: "I'll put it this way. If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question. It's horrible, terrible, inhuman torture. I can hardly imagine worse. I'd prefer permanent damage and disability to experiencing it again. I'd give up anything, say anything, do anything."

And yet OLC concludes that this unimaginable physical suffering is not "severe." Why? Because it is so effective at inflicting intense, unparalleled suffering that it does not last very long.

To say that this is not severe physical suffering -- is not torture -- is absurd. And to invoke the defense that what the Spanish Inquisition did was worse, that we use a more benign, non-torture form of waterboarding -- after all, we don't stomp on the victim's chest! -- is obscene. And yet here we have a United States official invoking that justification today, in sworn testimony to Congress, without betraying the slightest hint of self-awareness of how grotesque it is . . . and no one so much as blinked, so inured are we to this discourse by now.

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Scylla's description of self-inflicted waterboarding that sounds as if it might be similar to that approved as lawful for use by the CIA:

[T]hose of you who know me will know that I am both enamored of my own toughness and prone to hyperbole. The former, I feel that I am justifiably proud of. The latter may be a truth in many cases, but this is the simple fact:

It took me ten minutes to recover my senses once I tried this. I was shuddering in a corner, convinced I narrowly escaped killing myself.

Here's what happened:

The water fills the hole in the saran wrap so that there is either water or vaccum in your mouth. The water pours into your sinuses and throat. You struggle to expel water periodically by building enough pressure in your lungs. With the saran wrap though each time I expelled water, I was able to draw in less air. Finally the lungs can no longer expel water and you begin to draw it up into your respiratory tract.

It seems that there is a point that is hardwired in us. When we draw water into our respiratory tract to this point we are no longer in control. All hell breaks loose. Instinct tells us we are dying.

I have never been more panicked in my whole life. Once your lungs are empty and collapsed and they start to draw fluid it is simply all over. You [b]know[b] you are dead and it's too late. Involuntary and total panic.

There is absolutely nothing you can do about it. It would be like telling you not to blink while I stuck a hot needle in your eye.

At the time my lungs emptied and I began to draw water, I would have sold my children to escape. There was no choice, or chance, and willpower was not involved.

I never felt anything like it, and this was self-inflicted with a watering can, where I was in total control and never in any danger.

And I understood.

Waterboarding gets you to the point where you draw water up your respiratory tract triggering the drowning reflex. Once that happens, it's all over. No question.

Some may go easy without a rag, some may need a rag, some may need saran wrap.

Once you are there it's all over.

I didn't allow anybody else to try it on me. Inconceivable. I know I only got the barest taste of what it's about since I was in control, and not restrained and controlling the flow of water.

But there's no chance. No chance at all.

So, is it torture?

I'll put it this way. If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question.

It's horrible, terrible, inhuman torture. I can hardly imagine worse. I'd prefer permanent damage and disability to experiencing it again. I'd give up anything, say anything, do anything.

The Spanish Inquisition knew this. It was one of their favorite methods.

It's torture. No question. Terrible terrible torture. To experience it and understand it and then do it to another human being is to leave the realm of sanity and humanity forever. No question in my mind.