The Crossed Pond

An interesting side bar which is actually pretty central to the content of the OLC memos are the reactions of some of the people whose work was cited within those memos to prove crucial points. Work that was cited, in essence, as precedent strong enough to base a legal opinion on.

One of the foundational claims in the memos is the conclusion that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” That’s the citation used, coming from a case nobody’s ever heard of from an appellate case called South Atlantic v. Riese.

The attorney who tried that particular case writes Sully:

Reading the Bybee torture memo released yesterday was my second nearly personal brush with this type of argumentation.

In 2004, I learned that the draft Report on Interrogation Methods by the Pentagon Working Group, the granddaddy of torture memos leaked in 2004, cited an appellate decision from a case I tried in federal court in the 1990’s as part of the justification for why certain acts of brutality did not fit the definition of torture under federal law.

Sure enough, there on page 16 of the memo released yesterday was the reference to South Atlantic v. Riese, again for the proposition that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.”

The chilling thing is that the case wasn’t about torture, it was a business dispute over construction of an apartment complex in Nashville, TN.

One of the pivotal “enhanced interrogation techniques” authorized by the OLC memos was sleep deprivation. Not run-of-the-mill sleep deprivation, of course, but concentrated, intense, prolonged sleep deprivation. What’s more, it was often used as a base tactic, meaning they’d start there and add additional stressors—head bashing, sensory deprivation, sensory overload, waterboarding, whatever—compiled on top of the sleep deprivation. The reasoning behind this was based on a British study that concluded that “The longest studies of sleep deprivation in humans … involved volunteers [who] were deprived of sleep for 8-11 days … Surprisingly little seemed to go wrong with the subjects physically. The main effects lay with sleepiness and impaired brain functioning, but even these were no great cause for concern.”

The citation for that is: James Horne, Why We Sleep: The Functions Of Sleep in Humans and Other Mammals 23-24 (1988).

TPMmuckracker decided to contact Dr. Horne and call his attention to this use of his research. Horne was, understandably, horrified, but not just because of the use of his research, but because they had gotten it so grotesquely wrong:

Informed by TPMmuckraker that his work had been put to this use, Horne — who heads the Sleep Research Centre, at Loughborough University in Leicestershire, U.K. — was indignant. He explained the crucial difference between his controlled experiments, in which subjects were under no additional stress, and the CIA’s use of sleep deprivation on interrogation subjects.

“As soon as you add in any other stress, any other psychological stress, then the sleep deprivation feeds on that, and the two compound each other to make things far worse. I made that very, very clear,” he said. “And there’s been a lot of research by others since then to show that this is the case.”

As for whether such stress could be considered “harmful,” Horne was unequivocal. “I thought it was totally inappropriate to cite my book as being evidence that you can do this and there’s not much harm. With additional stress, these people are suffering. It’s obviously traumatic,” he said. “I just find it absurd.”

Further, Horne continued, sleep-deprived subjects become so confused that they’re highly unlikely to offer useful intelligence. “I don’t understand what you’re going to get out of it,” he said. “You can no longer think rationally, you just become more of an automaton … These people will just be spewing nonsense anyway. It’s pointless!”

To put that another way, the CIA decided to use sleep deprivation, based on the OLC recommendation, as a state on which to add additional stressors, a sort of precursor state to other forms of torture. They based that on a quote from a study, wherein the quote said sleep deprivation was not itself necessarily harmful in very controlled conditions, but they left out the “…unless you add additional stressors, in which case it’s horrifically traumatic and turns the subjects into scarred and babbling retards.”

What’s fascinating is that the purpose of the OLC, the reason for the memos, is they were purportedly asked not to take a position and try to find a legal justification, any legal justification, for it. Rather, the point of the OLC is to check whether something is legal or not, i.e. to review and summarize the dominant legal thinking. On the case of torture, for which there is not a dearth of case law (particularly international), and in areas of human suffering specifically, the OLC chose to reach for a single obscure appellate case about a slum landlord and a sleep study in Britain which they lopped off the conclusion and caveats for, and treat those as if they were the relevant and guiding precedents that existed on the matter. It is quite literally analogous to 99 out of 100 doctors agreeing that cigarettes cause cancer, a lawyer being asked to independently determine if cigarettes cause cancer, and citing the one obscure and lone dissenter as being representative of the medical community’s opinion on the matter. Actually, it’s worse than that. It’s like doing that, but then it being discovered that the the one guy you quoted was actually agreeing with the other 99 and you just flagrantly misinterpreted him and THEN declared that misinterpretation as being representative of the medical community’s opinion on the matter.

In any other context, lawyers doing that for a client would likely be disbarred and sued by their clients for malpractice. They might well be jailed for fraud. And that’s if they did it even in relation to a trivial matter, not determining the extent that the United States government can unleash untold suffering on people in its custody.

And in this case the American people were their clients. Or at least were supposed to be.