BY Tom McDonnell for Lawyers.com
House Speaker Nancy Pelosi has said the Central Intelligence Agency (CIA) misled her in a September 2002 briefing. She said that they told her about enhanced interrogation techniques, that the techniques were legal, but that waterboarding had not yet been used. She says she didn't find out until 2003 that a detainee had been waterboarded. Even then she didn't object to the practice.
Published CIA records say the September 2002 briefing dealt with "enhanced interrogation techniques on Abu Zubaydah and a description of the particular EIT's that had been employed." Zubaydah, then thought to be a high level al Qaeda member, had been waterboarded 83 times that August. Porter Goss, House Representative from Florida, was also present at the briefing. He says the CIA informed them about waterboarding Zubaydah. Goss later became the Director of the CIA. Senate Minority Leader John Boehner and some other Republicans are making an issue of Pelosi's statements.
The Secret Justice Department Memo
Looking at the previously secret August 1, 2002 Justice Department Memo issued only a month before the briefing, you can see it deals with whether waterboarding Abu Zubaydah would amount to torture. The memo was signed by Jay Bybee, the head of the Office of Legal Counsel (OLC), but apparently written by Berkeley law professor John Yoo. The memo says that it is based on the facts that the CIA's acting general counsel John Rizzo gave them.
The 18-page memo stresses three facts:
- Thousands of US Troops (Navy Seals, Special Operations Forces) have gone through Survival, Evasion, Resistance, Escape Training (SERE), which includes waterboarding
- Hardly any reports had been received of the trainees suffering subsequent ill effects
- Waterboarding is essentially painless and lasts only "20 to 40 seconds"
The memo leaves out the following facts:
- The SERE program permitted a trainee to be waterboarded only once or twice. (As stated above, the CIA waterboarded Zubaydah 83 times)
- The SERE program was based on interrogation techniques used by North Korea and Communist China during the Korean War
- The CIA used a harsher waterboarding method than did SERE, applying, according to the CIA Inspector General, "large volumes of water to a cloth that covered the detainee's mouth and nose" rather than the "small amount of water [applied] to the cloth in a controlled manner" for SERE trainees
- More important than anything else, the American SERE trainees had volunteered and had to know that they were not going to be killed or seriously harmed. Individuals who are imprisoned have good reason to believe that the detaining authority (the CIA) might kill them, particularly after, among other things: Being hooded, placed in the equivalent of dog crates, repeatedly slammed against "flexible" walls, deprived of sleep while shackled in uncomfortable positions for up to a week at a time, and placed on a liquid diet
The memo also omits other historical facts suggesting that the opposition to waterboarding is not new. After World War II, the Tokyo War Crimes Tribunals convicted Japanese military members of war crimes for waterboarding captured American military personnel. In addition, there is evidence that outside the training context, waterboarding leaves psychological scars
Purpose of Waterboarding
Even Bybee and Yoo admit that the purpose of waterboarding is to make the detainee feel as if he going to drown, "a threat of imminent death." A former U.S. Navy instructor Malcolm Nance, who trained U.S. troops to resist this technique, describes it as follows: "Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration - usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia."
When briefing Pelosi, the CIA may have been much more balanced and complete. However, given the facts the CIA gave Bybee and Yoo, it is possible that the CIA presented waterboarding to her as crucial to prevent a second 9/11 and as being little more serious than college fraternity hazing.
Speaker Pelosi herself almost certainly should have inquired more deeply, been more precise in her statements, and immediately protested the practice. We should, however, withhold judgment until we learn exactly what was said to her. A bi-partisan commission similar to the 9/11 Commission would help answer this question.