The Nappy Cat Chronicles

Was it torture?

The rationale for al-Qahtani’s abusive treatment came from the highest level of the United States Government. President George W. Bush (2002, February 7) declared that the protections afforded to detainees by Geneva Conventions do not apply to al Qaeda and Taliban affiliated “unlawful combatants.” In a memorandum to then presidential counsel and current attorney general Alberto Gonzalez, Justice Department lawyer Jay C. Bybee (2002, August 1) asserted the following:

[F]or an act to constitute torture…it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture…it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. We conclude that the mental harm also must result from…threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party. ¹ (¶ 2)

According to the objectively worded and practical definition of torture set forth by this brief, although physically and mentally abusive, humiliating, and degrading, the documented treatment of al-Qahtani and the undocumented treatment of an untold number of detainees do not constitute torture.

In the 2004 investigation of the Abu Ghraib prison in Baghdad, the former chief of military intelligence at Abu Ghraib, Colonel Thomas M. Pappas, testified that the Abu Ghraib BSCT medical personnel reviewed detainee “interrogation plans” and advised military personnel as to what parts of the plan could be implemented based on a determination of the detainee’s interrogative “fitness” (Bloche & Marks, 2005b). In a declassified memorandum, commander Lieutenant General Ricardo S. Sanchez (2003, September 14) approved the following interrogation techniques (presented in abbreviated form), modeled on those used at Camp Delta, for use at Abu Ghraib:

1. Interrogators may significantly increase a detainee’s fear level.
2. Interrogators may invoke feelings of futility in a detainee.
3. Interrogators may isolate a detainee for no more than 30 days. If a longer isolation is desired, a commanding officer must be briefed before it is implemented.
4. Interrogators must provide a detainee with a minimum of 4 hours of sleep per day for no more than three consecutive days.
5. Interrogators may use stress positions such as sitting, standing, kneeling, and prone for no more than 60 consecutive minutes and for no more than 4 hours a day.

The interrogation techniques could be used provided that “the detainee is medically and operationally evaluated as suitable” (Sanchez, 2003, September 14, General Safeguards section, ¶ 1).

Unfortunately, these interrogation techniques were not followed by practical guidelines. How to increase a detainee’s fear level significantly, invoke feelings of futility, or force a detainee into a sustained stress position were at the discretion of military personnel. This latitude significantly increased the risk of detainee abuse. In a leaked report, the International Committee of the Red Cross (ICRC; 2004) determined that the most frequent allegations regarding methods of abuse throughout their 29 visits to 14 detention facilities included:

1. Periods of “hooding” ranging from a few hours to four consecutive hours in order to induce disorientation and obstruct breathing.
2. Extended periods of handcuffing causing skin lesions and nerve damage.
3. Beatings, slapping, punching, and kicking.
4. Periods of isolation wherein the detainee was completely naked.
5. Being displayed naked to military personnel and other detainees for the amusement of military personnel.
6. Exposure to outdoor temperature possibly exceeding 122 °F.

The ICRC (2004) concluded that those detainees classified as high intelligence value “unlawful combatants” “were at high risk of being subjected to a variety of harsh treatments ranging from insults, threats and humiliations to both physical and psychological coercion, which in some cases was tantamount to torture [italics added], in order to force cooperation” (Executive Summary section, ¶ 5).

¹After it became public, the Bybee (2002, August 1) memorandum was withdrawn. The superseding memorandum formally defined torture as the intentional infliction of “severe [italics added] physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions)” (Levin, 2004, December 30, Section I, ¶ 1). However, Levin (2004, December 30) does not take issue with Bybee’s (2002, August 1) practical definition of torture.