By R. Jeffrey Smith
Washington Post Staff Writer
Sunday, April 19, 2009

The four Justice Department memos to the CIA's top lawyer that were released last week reflect an effort by Bush administration appointees to create finely tuned justifications for harsh interrogation techniques, all under a blanket of secrecy covering the agency's prisons and the questioning.

In the wake of the memos' disclosure, it is clear that the lawyers and the CIA got it wrong in measuring the methods against their selected legal test: that they must not "shock the conscience." The brutality of the interrogation measures -- including repeatedly slamming people into walls, simulating their drowning and stuffing them into dark, constricting boxes -- shocked the conscience of at least some.

President Obama said the approved techniques "undermine our moral authority and do not make us safer." Director of National Intelligence Dennis C. Blair said that although the CIA was urgently trying to get information after the Sept. 11, 2001, attacks, its "methods, read on a bright, sunny, safe day in April 2009, appear graphic and disturbing."

To supporters of the Bush-era practices, the length, precision and detail of the memos show that -- even in the absence of public scrutiny -- legal red lines were carefully considered and that precautions were taken to avoid causing death or what the memos' authors considered illegal pain.

To critics, the sterile wording and articulation of seemingly arbitrary safeguards to sanction what many consider torture evoke totalitarianism.

To endorse the CIA's interrogation plans, the experts in the Justice Department's Office of Legal Counsel had to parse highly specific terminology in a collection of relatively recent U.S. anti-torture statutes, international laws and treaties, with few directly applicable judicial rulings to serve as guideposts. They also had to weigh contemporary politics, since the "shock the conscience" test was a target they knew would move.

The solution chosen was to slice the apple thin and eat only a portion. Interrogators could shackle detainees to floors or ceilings to keep them awake for more than seven days, but they had to allow a normal period of sleep before starting again. They could pack them into tight, dark containers for more than eight hours at a time but had to allow a total of six hours outside the box every day.

Amnesty International, Human Rights Watch and the International Commission of Jurists called such boundaries a way to justify illegal, cruel, inhumane, degrading and torturous treatment. American Civil Liberties Union lawyer Jameel Jaffer, whose lawsuit helped propel the memos' disclosure, called their arguments "window dressing for war crimes" because they were "meant to support conclusions that were predetermined" rather than to produce a credible reading of the law.

But former attorney general Michael B. Mukasey, writing with former CIA director Michael V. Hayden in Friday's Wall Street Journal, said the techniques described in the memos were reasonable for use by experienced interrogators "in controlled circumstances" on a special subset of detainees. They complained that the disclosure of the "absolute limit of what the U.S. government could do to extract information" will allow terrorists to practice enduring such techniques.

The memos supported manipulating detainees' diets; forcibly grabbing or slapping their faces and striking them in the gut; enforcing lengthy, stressful and uncomfortable standing or sitting positions; and hosing them with cold water for at least 20-minute periods while the detainees wore only a diaper.

Interrogators were further told that they could "exploit the detainee's fear of being seen naked" by women and others, and that various forms of rough physical treatment could be used to promote the idea that prisoners would be subjected to "increasing levels of force."

Several experts, including Columbia Law School adjunct professor and commentator Scott Horton, noted that the Justice Department even approved of the modern equivalent of the Ministry of Love's Room 101 from George Orwell's "1984," where prisoners were forcibly threatened with physical manifestations of their greatest fears.

In the book, Winston Smith's jailers threaten to place a cage of rats atop his head; at a secret CIA prison, U.S. officers were told, it was okay to place al-Qaeda member Zayn al-Abidin Muhammed Hussein, known as Abu Zubaida, into a cramped box and pretend to insert an insect that he feared would sting him.

"You have informed us that he appears to have a fear of insects," noted then-Assistant Attorney General Jay S. Bybee in an Aug. 1, 2002, memo to John A. Rizzo, who was then and remains the CIA's acting general counsel.

The Justice Department made clear that its approval of other techniques was also contingent on finely slicing the apple: Doctors had to evaluate in advance the ability of each detainee to survive the coercion; slaps to the head and gut could not provoke severe or lasting pain; the water used for dousing had to be safe for drinking, and those holding the hose had to stop at two-thirds of the time that normally causes hypothermia.

Detainees could not be allowed to hang from their shackles. Simulated drowning could be practiced only with a saline solution, to keep blood sodium levels in a safe range, with the liquid poured for up to 40 seconds at a time, reaching a total of 12 minutes per day. Moreover, the detainees had to be fed a liquid diet in advance, to keep them from choking on their own vomit.

David B. Rivkin Jr., a lawyer at Baker Hostetler who supported the detainee policies, says the memos' "careful and nuanced legal analysis" of such trade-offs produced "eminently reasonable results."

But a frequent complaint by other lawyers was that the documents' language, including the articulation of precisely calibrated limits, was circular. The memos relied heavily on the CIA's assurances and information about the limits of pain and suffering, and repeated them in their instructions.

A senior Obama appointee, who spoke on the condition of anonymity because he was not authorized to comment, said, "My overwhelming feeling is boy, what a kind of corruption of the system of law to serve a political end." Tax lawyers, for instance, may always work at the edge of the law, he said, but "you don't treat the [anti-]torture convention the same as the tax code."

Louis Michael Seidman, a constitutional law professor at Georgetown University, said the memos' authors fell into a familiar trap: They looked so hard for legal authority that they paid too little heed to sound intuition. Sometimes, he said, "the law promotes rather than stands in the way of morally reprehensible behavior."

"People who get too caught up in technical legal analysis sometimes lose sight of their moral compass," Seidman said. Anyone who got away from the law and thought deeply about the fact that the CIA's methods were being practiced on human beings "would come away with very different conclusions."