How Close to the “Rack and Screw”?

On Friday, the government released a new round of documents in the ongoing Freedom of Information Act litigation, among them several that the CIA and Justice Department's Office of Legal Counsel claimed they'd missed on previous searches of their files.

One of these documents (PDF) is a mysterious one-page questionnaire that reads in its entirety:

  1. Describe the importance of each technique as applied to this person. What do you reasonably hope to accomplish? Describe past successes of each technique in detail.
  2. Describe how each technique is consistent with “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them.” Describe any other traditions – in state law, or in foreign practice – in which these techniques are used or approved.
  3. To what extent are the techniques designed to “instill stress, hopelessness, and fear, and to break resistance.”
  4. Do any of the techniques cause “severe mental distress or suffering”?
  5. How close is each technique to the “rack and screw”?
  6. Do the techniques “offend hardened sensibilities”?
  7. Do the techniques violate “the whole community sense of decency and fairness that has been woven by common experience into the fabric of acceptable conduct”?
  8. Do the techniques “violate the decencies of civilized conduct”?
  9. Are the techniques “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience”

Leave aside the shock of seeing the phrase “rack and screw” in a document evidently intended for someone preparing or approving an interrogation plan. What I find deeply disturbing is the way it mirrors and encourages the kind of sophistry that pervaded the OLC's torture memos.

Take for example the phrases “traditional executive behavior, contemporary practice, and the standards of blame generally applied to them” and “so egregious, so outrageous, that they fairly may be said to shock the contemporary conscience.” An analysis of the OLC memos (PDF) that the Senate Intelligence Committee and the Justice Department prepared jointly and declassified earlier this year describes how the OLC navigated its way through the legal landscape:

OLC also concluded that the techniques in the CIA program were not objectively “egregious” or “outrageous” in light of traditional executive behavior and contemporary practice. In reaching that conclusion, OLC reviewed U.S. judicial precedent, public military doctrine, the use of stressful techniques in SERE training, public State Department reports on the practices of other countries, and public domestic criminal practices. OLC concluded that these sources demonstrated that, in some circumstances (such as domestic criminal investigations) there was a strong tradition against the use of coercive interrogation practices, while in others (such as with SERE training) stressful interrogation techniques were deemed constitutionally permissible. OLC therefore determined that use of such techniques was not categorically inconsistent with traditional executive behavior, and concluded that under the facts and circumstances concerning the program, the use of the techniques did not constitute government behavior so egregious or outrageous as to shock the conscience in violation of the Fifth Amendment.

In other words, the only examples the OLC can point to where “contemporary practice” includes the enhanced interrogation methods are the military's SERE training – where they are used in carefully controlled scenarios to mimic the torture methods of authoritarian regimes – and in countries whose detention and interrogation practices are criticized in the U.S. State Department's annual human rights reports. And so, despite the fact that in both those situations we call the methods what they are, torture, somehow, by virtue of the fact they're used somewhere, they don't shock the conscience.

 

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