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Posted by on Apr 20, 2009 in Politics | 4 comments

Waterboarding “Guidelines” and CIA Prosecutions

Marcy Wheeler’s Saturday piece reporting that Khalid Sheikh Mohammed and Abu Zubaydah were waterboarded a total of at least 266 times has caught a lot of well-deserved attention — most notably from Scott Shane, who credited Marcy as the source for his article about the waterboarding in today’s New York Times.

A bit over halfway down the page, just before the paragraph where Shane mentions Marcy, he writes:

The fact that waterboarding was repeated so many times may raise questions about its effectiveness, as well as about assertions by Bush administration officials that their methods were used under strict guidelines.

A footnote to another 2005 Justice Department memo released Thursday said waterboarding was used both more frequently and with a greater volume of water than the C.I.A. rules permitted.

Shane, however, stops short of connecting the grossly excessive waterboarding to Pres. Obama’s pledge not to prosecute the agents who conducted the interrogations as long as they acted within the guidelines provided by the OLC lawyers.

Marcy makes that connection explicit (emphasis in original):

Here’s one reason to demand a special prosecutor to investigate these actions. In addition to revealing the sheer number of times KSM and Abu Zubaydah were waterboarded, the memos reveal that the interrogators who waterboarded these men went far beyond even the expansive  guidelines for torture described in the Bybee Memo, notably by dumping water onto their nose and mouth, rather than dribbing it on.

The IG Report noted that in some cases the waterboard was used with far greater frequency than initially indicated, see IG Report at 5, 44, 46, 103-04, and also that it was used in a different manner. See id. at 37 (“[T]he waterboard technique  … was different from the technique described in the DoJ opinion and used in the SERE training. The difference was the manner in which the detainee’s breathing was obstructed. At the SERE school and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency Interrogator …  applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique is different from that used in SERE training because it is “for real–and is more poignant and convincing.”) [my emphasis]

There’s been a lot of discussion about whether those who did what the OLC memos authorized should be prosecuted. But in the case of those who waterboarded KSM and Abu Zubaydah, that’s irrelevant, because they did things the OLC memos didn’t authorize.