On November 20, 2002, an Afghan detainee named Gul Rahman died in a cell inside a prison — colloquially known as “the Salt Pit” or “the dark prison” — which was part of the network of hidden, secret prisons operated by the C.IA. around the globe to interrogate Arab and Muslim detainees.
The fact that a prisoner had died in the Salt Pit was already known, but not his identity or the details of what happened to him. The Associated Press reports those details in an investigative piece published today.
Marcy Wheeler examines what the article reveals about the symbiotic relationship between the C.I.A.’s torture program and the torture memos authored by John Yoo and Jay Bybee among others (emphasis is Marcy’s):
Aside from finally providing details on a story that has long been known, the story is interesting for the way it shows the how the CIA’s torture system fit with DOJ’s approvals in the Bybee Memos. The Rahman death shows that CIA’s managers (probably in the Counterterrorism Center) were involved in direct guidance on a technique that got someone killed. That technique was specifically not approved in the Bybee Two memo. But when CTC worked to exonerate the guy in the field–the manager of the Salt Pit–they pointed to the intent language of the Bybee One memo, and claimed that anything short of intending severe pain could not qualify as torture. Ultimately, CIA’s managers used the Get Out of Jail Free Card that John Yoo had written them to prevent accountability for themselves when they gave approval for a technique that got someone killed.
That technique was “water dousing”: pouring cold water over a prisoner who had been stripped naked and then leaving the prisoner in a cell for many hours in freezing or sub-freezing temperatures. This was not an authorized technique at the time; however, the most chilling part of this particular story is what is suggested about John Yoo’s use of his own definition of torture to avoid responsibility for the techniques he authorized when they resulted in death:
In fact, John Yoo, appears to blame the people interpreting the Bybee Memos for any untoward results from torture. For example, he refers to a written document (probably cables to the field) that appear to be derivative of the Bybee Memo, suggesting those didn’t properly account for pain that might amount to death.
The Memo says that the pain must rise to the level that “would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of bodily functions.” Bybee Memo at 6. There is no way to interpret this sentence other than that if the pain is equivalent to the pain that accompanies those conditions, the infliction qualifies as torture, whether or not it actually does result in those conditions. It certainly would not be so misinterpreted by the sophisticated legal audience at which the Bybee Memo was directed–especially given the analysis in the Classified Bybee Memo, which carefully examined the level of physical pain caused by the individual interrogation techniques even though none of those techniques cause death, organ failure, or serious impairment of bodily functions. See Classified Bybee Memo at 9-10 (“With respect to physical pain, we previously concluded that ’severe pain’ within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury.”)40
40 [long redaction] But, of course neither Professor Yoo nor Judge Bybee have anything to do with writing or reviewing [redacted] and they could reasonably assume their own work product would be read in good faith and consistently with its terms by a sophisticated audience even if a particular reader did not read it carefully or willfully disregarded its terms. [emphasis original]
That is, Yoo seems to blame whoever both read the Bybee Memo and–having interpreted the memo in a “sophisticated” manner–passed on authorization for techniques that did result [in] death.
PAST CONTRIBUTOR.