Mental torture: A critique of erasures in U.S. law

Georgetown Law Journal

Volumn 100, Issue 3, 2012, Pages 823-863

  Luban, David ^a   Shue, Henry ^b,c  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

^b Centre for International Studies   (United States)

^c MERTON COLLEGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84860189103     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (95)

1. WILLIAM SHAKESPEARE, KING LEAR act 4, sc. 1, lines 38-39,
2. reprinted in THE COMPLETE PLAYS AND POEMS OF WILLIAM SHAKESPEARE 1166 (William Allan Neilson & Charles Jarvis Hill eds., 1942).
3. Senator Fred Thompson, Speech at the Republican National Convention (Sept. 2, 2008),
4. in N.Y. TIMES, Sept. 3, 2008, http://www.nytimes.com/2008/09/03/us/ politics/03thompson-text.html?fta=y&pagewanted=print.
5. For detailed analysis of the memos, see What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration: Hearing Before the Subcomm. on Admin. Oversight & the Courts of the S. Comm. on the Judiciary, 111th Cong. 11-14, 47-50, 290-95 (2009),
6. for statements and testimony of David Luban, Professor of Law, Georgetown University Law Center, and DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY 162-206 (2007).
7. Focusing on one of the torture memos, the Office of Professional Responsibility (OPR) - the U.S. Department of Justice's internal ethics watchdog - demonstrated in detail how the government lawyers distorted the law. See OFFICE OF PROF'L RESPONSIBILITY, INVESTIGATION INTO THE OFFICE OF LEGAL COUNSEL'S MEMORANDA CONCERNING ISSUES RELATING TO THE CENTRAL INTELLIGENCE AGENCY'S USE OF "ENHANCED INTERROGATION TECHNIQUES" ON SUSPECTED TERRORISTS 159-259 (2009).
8. Not everyone agrees that the distortions were unethical: a senior Justice Department official, David Margolis, reviewed the OPR reports critically and downgraded the finding that the government lawyers had committed professional misconduct to a finding of "poor judgment". Memorandum from David Margolis, Assoc. Deputy Attorney Gen., U.S. Dep't of Justice, for the Attorney Gen. 67-69 (Jan. 5, 2010), http://judiciary.house.gov/hearings/pdf/ DAGMargolisMemo100105.pdf. One of us has rebutted Margolis's analysis.
9. David Luban, David Margolis Is Wrong, SLATE (Feb. 22, 2010, 11:49 AM), http://www.slate.com/articles/news-and-politics/jurisprudence/2010/02/ david-margolis-is-wrong.html.
10. See ALFRED W. MCCOY, A QUESTION OF TORTURE: CIA INTERROGATION, FROM THE COLD WAR TO THE WAR ON TERROR 100-02 (2006).
11. The mercilessness for which we will, in the end, condemn psychological torture is suggested in Henry Shue, Torture, 7 PHIL. & PUB. AFF. 124 (1978). Most subsequent philosophical discussions of torture, which were relatively rare until the last few years but have now, depressingly, expanded to a large library, focus on ticking-bomb scenarios for torture without much attention to the nature of the torture itself or to which of its features provide the grounds for its wrongfulness. An important article on such scenarios is Vittorio Bufacchi & Jean Maria Arrigo, Torture, Terrorism and the State: A Refutation of the Ticking-Bomb Argument, 23 J. APPLIED PHIL. 355 (2006).
12. See also ASS'N FOR THE PREVENTION OF TORTURE, DEFUSING THE TICKING BOMB SCENARIO: WHY WE MUST SAY NO TO TORTURE, ALWAYS 11 (2007), available at http://www.apt.ch/index2.php?option=com-docman&task=doc-view&gid= 281&Itemid=59 (challenging the underlying assumptions of the ticking-bomb exception and arguing that any "exception to the prohibition of torture must be categorically rejected").
13. For recent book-length studies, see BOB BRECHER, TORTURE AND THE TICKING BOMB (2007)
14. and YUVAL GINBAR, WHY NOT TORTURE TERRORISTS? MORAL, PRACTICAL, AND LEGAL ASPECTS OF THE TICKING BOMB JUSTIFICATION FOR TORTURE (2008).
15. Both of us have argued against the distortions that the "ticking-bomb scenario" introduces into discussions of torture. See David Luban, Liberalism, Torture, and the Ticking Bomb, 91 VA. L. REV. 1425 (2005),
16. reprinted in THE TORTURE DEBATE IN AMERICA 35 (Karen J. Greenberg ed., 2006);
17. David Luban, Unthinking the Ticking Bomb, in GLOBAL BASIC RIGHTS 181 (Charles R. Beitz & Robert E. Goodin eds., 2009);
18. Henry Shue, Torture in Dreamland: Disposing of the Ticking Bomb, 37 CASE W. RES. J. INT'L L. 231 (2006).
19. Notable exceptions to the general tendency to neglect to probe the nature of the torture itself have been discussed in JOHN T. PARRY, UNDERSTANDING TORTURE: LAW, VIOLENCE, AND POLITICAL IDENTITY (2010);
20. David Sussman, "Torture Lite": A Response, 23 ETHICS & INT'L AFF. 63 (2009);
21. David Sussman, What's Wrong with Torture? 33 PHIL. & PUB. AFF. 1 (2005);
22. Jessica Wolfendale, The Myth of "Torture Lite", 23 ETHICS & INT'L AFF. 47 (2009).
23. See also David Luban, Human Dignity, Humiliation, and Torture, 19 KENNEDY INST. ETHICS J. 211 (2009) (using themes of Jewish ethics to critique torture methods based on humiliation).
24. A major historical survey of the varieties of torture is DARIUS REJALI, TORTURE AND DEMOCRACY (2007).
25. Other extensive, recent philosophical discussions include CHARLES FRIED & GREGORY FRIED, BECAUSE IT IS WRONG: TORTURE, PRIVACY AND PRESIDENTIAL POWER IN THE AGE OF TERROR (2010);
26. RICHARD MATTHEWS, THE ABSOLUTE VIOLATION: WHY TORTURE MUST BE PROHIBITED (2008);
27. JESSICA WOLFENDALE, TORTURE AND THE MILITARY PROFESSION (2007).
28. Useful accounts of current torture practices include MATTHEW ALEXANDER WITH JOHN R. BRUNING, HOW TO BREAK A TERRORIST: THE U.S. INTERROGATORS WHO USED BRAINS, NOT BRUTALITY, TO TAKE DOWN THE DEADLIEST MAN IN IRAQ (2008);
29. CHRIS MACKEY & GREG MILLER, THE INTERROGATORS: INSIDE THE SECRET WAR AGAINST AL QAEDA (2004);
30. Mark Danner, US Torture: Voices from the Black Sites, N.Y. REV. BOOKS (Apr. 9, 2009), http://www.nybooks.com/articles/archives/2009/apr/09/us-torture- voices-from-the-black-sites/ (leaking and analyzing confidential ICRC report on high-value detainees). We are not aware of a conceptual analysis of U.S. legal definitions of torture.
31. 2 THE COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY 3357 (1971).
32. See Memorandum from Jay S. Bybee, Assistant Attorney Gen., Office of Legal Counsel, for Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), in THE TORTURE MEMOS: RATIONALIZING THE UNTHINKABLE 41, 47 n.3 (David Cole ed., 2009) [hereinafter Bybee-Yoo Torture Memo];
33. Memorandum from Jay S. Bybee, Assistant Attorney Gen., Office of Legal Counsel, for John Rizzo, Acting Gen. Counsel, Cent. Intelligence Agency (Aug. 1, 2002), in THE TORTURE MEMOS: RATIONALIZING THE UNTHINKABLE, supra, 106, 118 [hereinafter Bybee-Yoo Techniques Memo].
34. Memorandum from Daniel Levin, Acting Assistant Attorney Gen., Office of Legal Counsel, for James B. Comey, Deputy Attorney Gen., U.S. Dep't of Justice (Dec. 30, 2004), in THE TORTURE MEMOS: RATIONALIZING THE UNTHINKABLE, supra note 17, at 128, 141 [hereinafter Levin Memo].
35. The phrase originates in Gilbert Ryle's classic of philosophical behaviorism, GILBERT RYLE, THE CONCEPT OF MIND 15-16 (1949).
36. Jamie Mayerfeld, Playing by Our Own Rules: How U.S. Marginalization of International Human Rights Law Led to Torture, 20 HARV. HUM. RTS. J. 89, 130 (2007).
37. Thus, to think that psychological torture is not an assault on the body is a conceptual error from the outset⋯⋯. [W]hat all torture has in common, regardless of physical or mental appearances, is its assault on the brain⋯. Extreme fear and despair ⋯ are emotional states that are anchored in brain states. Uwe Jacobs, Documenting the Neurobiology of Psychological Torture: Conceptual and Neuropsychological Observations, in THE TRAUMA OF PSYCHOLOGICAL TORTURE 163, 164-65 (Almerindo E. Ojeda ed., 2008).
38. "Torture is speciously categorized as physical ⋯ or as psychological. This is a distinction without a difference. Coercion of any type ⋯ can and often does impact on brain, spinal cord, and organ integrity and therefore has medical consequences." Rona M. Fields, The Neurobiological Consequences of Psychological Torture, in THE TRAUMA OF PSYCHOLOGICAL TORTURE, supra, at 139, 139.
39. See JOHN T. CACIOPPO & WILLIAM PATRICK, LONELINESS: HUMAN NATURE AND THE NEED FOR SOCIAL CONNECTION 92-109 (2008);
40. see also Fields, supra note 22, at 139-62 (arguing that feelings of fear and powerlessness can have medical consequences); Stuart Grassian, Neuropsychiatric Effects of Solitary Confinement, in THE TRAUMA OF PSYCHOLOGICAL TORTURE, supra note 22, at 113, 113-26 (discussing the psychological effects of solitary confinement through the story of Jose Padilla).
41. Memorandum from Steven G. Bradbury, Principal Deputy Assistant Attorney Gen., Office of Legal Counsel, for John A. Rizzo, Senior Deputy Gen. Counsel, Cent. Intelligence Agency (May 10, 2005), reprinted in THE TORTURE MEMOS: RATIONALIZING THE UNTHINKABLE, supra note 17, at 152, 167-68 [hereinafter Bradbury Memo].
42. On the sleep deprivation of al-Qahtani, see ARMY REGULATION 15-6: FINAL REPORT: INVESTIGATION INTO FBI ALLEGATIONS OF DETAINEE ABUSE AT GUANTANAMO BAY, CUBA DETENTION FACILITY 17-18 (2005) [hereinafter SCHMIDT REPORT], available at http://www.defense.gov/news/Jul2005/d20050714report.pdf.
43. Even in the ancient world, sleep deprivation was understood to be torture. Cicero characterizes the execution of Regulus by the Carthaginians through "enforced wakefulness" (vigilando) as "exquisite torture" (exquisita supplicia). MARCUS TULLIUS CICERO, DE OFFICIIS 376-78 (T.E. Page & W.H.D. Rouse eds., Walter Miller trans., William Heinmann 1913) (44 B.C.E.). The Supreme Court described sleep deprivation as torture in Ashcraft v. Tennessee, 322 U.S. 143, 150 n.6 (1944); the Court likened Ashcraft's thirty-six-hour-long interrogation to "the inquisition of the Middle Ages," id. at 152 n.8 (quoting Enoch v. Commonwealth, 126 S.E. 222, 225 (Va. 1925)).
44. and JANE MAYER, THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS (2008). The brief account that follows comes largely from these sources.
45. See, e.g., Survival Training, JFK SPECIAL WARFARE CTR. & SCH., http://www.training.sfahq.com/survival-training.htm (last visited Nov. 30, 2011).
46. On the development of SERE, see M. GREGG BLOCHE, THE HIPPOCRATIC MYTH 129-32 (2011).
47. The adventures of James Mitchell and Bruce Jessen were first exposed by two major works of investigative journalism. See Katherine Eban, Rorschach and Awe, VANITY FAIR (July 17, 2007), http://www.vanityfair.com/politics/features/ 2007/07/torture200707;
48. Jane Mayer, The Experiment, THE NEW YORKER (July 11, 2005), http://www.newyorker.com/archive/2005/07/11/050711fa-fact4. For additional discussion based on new interviews with some of the principals, see BLOCHE, supra note 32, at 132-57.
49. For a detailed description and timeline of these events, see S. COMM. ON ARMED SERVS., 110TH CONG., INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY (Comm. Print 2008). One of the authors (Luban) interviewed an interrogator who had worked in Iraq and asked him about the role of the BSCTs. The interrogator responded that they played a minor role, but that a BSCT had instructed him in how to induce Stockholm Syndrome in a detainee. He said it is easy to do but remarked that he personally felt it was immoral and that it reminded him of Arthur Koestler's Darkness at Noon and Fyodor Dostoevsky's The Grand Inquisitor.
50. See GEORGE ORWELL, NINETEEN EIGHTY-FOUR 296-300, 311 (Alfred A. Knopf 1992) (1949).
51. Josh White, Tactic Used After It Was Banned: Detainees at Guantanamo Were Moved Often, Documents Say, WASH. POST (Aug. 8, 2008), http://www. washingtonpost.com/wp-dyn/content/article/2008/08/07/AR2008080703004-pf.html.
52. See The Abu Ghraib Prison Photos, ANTIWAR.COM (Feb. 16, 2006), http://antiwar.com/news/?articleid=2444.
53. Bob Woodward, Detainee Tortured, Says U.S. Official: Trial Overseer Cites "Abusive" Methods Against 9/11 Suspect, WASH. POST (Jan. 14, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/ AR2009011303372-pf.html (quoting Susan J. Crawford).
54. See Atul Gawande, Hellhole, THE NEW YORKER (Mar. 30, 2009), http://www.newyorker.com/reporting/2009/03/30/090330fa-fact-gawande (discussing long-term solitary confinement); sources cited supra note 23.
55. Almerindo E. Ojeda, What Is Psychological Torture?, in THE TRAUMA OF PSYCHOLOGICAL TORTURE, supra note 22, at 1, 2-3.
56. MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, S. TREATY DOC. NO. 100-20, at 3-5 (1988) [hereinafter S. TREATY DOC. NO. 100-20].
57. S. COMM. ON FOREIGN RELATIONS, CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, S. EXEC. REP. NO. 101-30, at 4 (1990).
58. See Vienna Convention on the Law of Treaties art. 19(c), opened for signature May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT] (limiting permissible reservations to those not "incompatible with the object and purpose of the treaty"). Although the United States describes its definition of "severe mental pain or suffering" as an understanding, not a reservation, it falls under the Convention's definition of a reservation - "a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." Id. art. 2(1)(d). This definition and the following paragraph correct the interpretation and analysis offered in Henry Shue, Target-Selection Norms, Torture Norms, and Growing US Permissiveness, in THE CHANGING CHARACTER OF WAR 464, 475-76 (Hew Strachan & Sibylle Scheipers eds., 2011).
59. Declarations and Reservations, OFF. UNITED NATIONS HIGH COMMISSIONER FOR HUM. RTS., http://www2.ohchr.org/english/law/cat-reserve.htm (last updated Apr. 23, 2004).
60. The George H.W. Bush Administration shared the Reagan Administration's worry that CAT might (in the eyes of some states) reach U.S. law-enforcement practices: "The convention does place U.S. law enforcement officials when traveling overseas at risk of arrest and prosecution in foreign jurisdictions or even extradition to a third country for purported violations committed within the United States." Convention Against Torture: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990)
61. [hereinafter CAT SFRC Hearing] (statement of Mark Richard, Deputy Assistant Att'y Gen., U.S. Department of Justice).
62. CAT SFRC Hearing, supra note 61, at 17.
63. See 136 CONG. REC. S17491-01 (daily ed. Oct. 27, 1990).
64. Bybee-Yoo Torture Memo, supra note 17, at 49. For a powerful critique of this argument, and the Bybee-Yoo construal of mental torture, see Kate Riggs, Richard Blakeley & Jasmine Marwaha, Prolonged Mental Harm: The Torturous Reasoning Behind a New Standard for Psychological Abuse, 20 HARV. HUM. RTS. J. 263 (2007)
65. See Eric Schmitt & Carolyn Marshall, In Secret Unit's "Black Room," a Grim Portrait of U.S. Abuse, N.Y. TIMES (Mar. 19, 2006), http://www.nytimes.com/2006/03/19/international/middleeast/19abuse.html. Task Force 6-26's "adage" was "[i]f you don't make them bleed, they can't prosecute for it." Id.
66. The memo read a requirement into the statute that physical suffering must be "of some extended duration" to constitute torture. Id. at 143. Not only is there no support for this requirement in the statute, the structure of the statute rules it out: under ordinary rules of statutory construction, that the statute explicitly builds a duration requirement into the definition of mental torture but not physical torture means that there is no such requirement in the definition of physical torture. See 18 U.S.C. § 2340 (2006); cf. Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 81 (2002) (explaining the expressio unius canon that "an omission bespeaks a negative implication"). This flawed analysis, conjuring a statutory requirement out of thin air, proved convenient and indeed essential for permitting waterboarding. Levin's successor, Stephen G. Bradbury, used the Levin Memo's duration requirement to exclude waterboarding as a form of torture because waterboarding sessions are short. See Bradbury Memo, supra note 24, at 193-94. In a remarkable piece of legal detective work, Marty Lederman correctly guessed this deeply hidden connection between Levin's extended-duration requirement and waterboarding, more than two years before the Obama Administration released Bradbury's Memo. Lederman's prophetic weblog post was the first publication to explain the point of Levin's puzzling rewrite of the statute. See Marty Lederman, Yes, It's a No-Brainer: Waterboarding Is Torture, BALKINIZATION (Oct. 28, 2006, 11:07 AM), http://balkin.blogspot.com/2006/10/yes-its-no-brainer- waterboarding-is.html.
67. For more on this general subject, see DEREK S. JEFFREYS, SPIRITUALITY AND THE ETHICS OF TORTURE (2009).
68. Id. at 26. Eventually U.S. District Judge James Robertson (in a classified opinion) ordered Salahi freed because the government lacked evidence to detain him. Salahi v. Obama, 710 F. Supp. 2d 1, 15-16 (D.D.C.), vacated, 625 F.3d 745 (D.C. Cir. 2010); See Carol Rosenberg, Judge Orders Release of Detainee Abused at Guantánamo, MIAMI HERALD (Mar. 22, 2010), http://www. miamiherald.com/2010/03/22/1551648/judge-orders-detainee-abused-at.html. The U.S. Court of Appeals for the District of Columbia Circuit remanded the case, and Salahi remains in custody. See Salahi v. Obama, 625 F.3d 745, 753 (D.C. Cir. 2010). Oblivion may yet loom.
69. See Metin Başoǧlu, A Multivariate Contextual Analysis of Torture and Cruel, Inhuman, and Degrading Treatments: Implications for an Evidence-Based Definition of Torture, 79 AM. J. ORTHOPSY-CHIATRY 135, 141-42 (2009);
70. Metin Başoǧlu, Maria Livanou & Cvetana Crnobarić, Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent?, 64 ARCHIVES GEN. PSYCHIATRY 277, 283 (2007).
71. We do not, however, accept the implication of the former paper that the established international definitions, as distinguished from the arbitrary U.S. definitions, require change. See Başoǧlu, supra, at 142-43; see also THE TRAUMA OF PSYCHOLOGICAL TORTURE, supra note 22 (presenting analyses of psychological torture in a variety of contexts).
72. U.S. DEP'T OF STATE, INITIAL REPORT OF THE UNITED STATES OF AMERICA TO THE UN COMMITTEE AGAINST TORTURE pt. II.A (1999), available at http://www.state.gov/www/global/human-rights/torture-articles.html.
73. CAT SFRC Hearing, supra note 61, at 12. State Department Legal Adviser Abraham Sofaer offered the same explanation: If the Convention were simply a political statement, imprecision would cause no difficulties. However, because the Convention is a legal instrument and creates legal obligations, and especially because it requires establishment of criminal penalties under our domestic law, we must pay particular attention to the meaning and interpretation of its provisions, especially concerning the standards by which the Convention will be applied as a matter of U.S. law. Id. at 8 (statement of Abraham D. Sofaer, Legal Adviser, U.S. Department of State).
74. CAT SFRC Hearing, supra note 61, at 9 (statement of Abraham D. Sofaer, Legal Adviser, U.S. Department of State).
75. President George W. Bush, Address from the East Room: President Discusses Creation of Military Commissions To Try Suspected Terrorists (Sept. 6, 2006), http://georgewbush-whitehouse.archives.gov/news/releases/2006/09/20060906-3. html.
76. Statement on United Nations International Day in Support of Victims of Torture, 40 WEEKLY COMP. PRES. DOC. 1167-68 (June 26, 2004).
77. GEORGE W. BUSH, DECISION POINTS 171 (2010).
78. Article 1 of CAT uses "intentionally" where 18 U.S.C. § 2340 uses "specifically intended." Compare 18 U.S.C. § 2340(1) (2006), with CAT, supra note 3. "Intentionally" does not have the same meaning in all legal systems; as State Department Legal Adviser Abraham Sofaer notes, "The Convention was negotiated on a multilateral basis, ⋯ and differing points of view and differing legal systems are necessarily reflected in the final text." CAT SFRC Hearing, supra note 61, at 8 (statement of Abraham D. Sofaer, Legal Adviser, U.S. Department of State).
79. In the German legal system, "intention" (Vorsatz) is a significantly broader concept than specific intent or even intention as defined in the Model Penal Code. Vorsatz includes not only U.S.-style intention (dolus directus, in German terminology) and specific intent (dolus specialis) but also dolus eventualis, the nearest German equivalent to recklessness. Greg Taylor, Concepts of Intention in German Criminal Law, 24 OXFORD J. LEGAL STUD. 99, 106 (2004).
80. Dolus eventualis means acting in awareness of an unjustifiable risk and being reconciled to that risk. Id. at 101-06. Arguably, under this broader concept of intention, the brutal conditions in Haitian prisons may well count as torture under CAT. The German jurisprudence is widely influential in Europe and Latin America, and the International Criminal Court has interpreted "intention" in the German meaning to include dolus eventualis. Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges, ¶ 352 (Jan. 29, 2007), http://www.icc-cpi.int/iccdocs/doc/ doc266175.pdf.
81. See IRA BERLIN, MANY THOUSANDS GONE: THE FIRST TWO CENTURIES OF SLAVERY IN NORTH AMERICA 115-16 (1998).
82. See generally MOSES I. FINLEY, ANCIENT SLAVERY AND MODERN IDEOLOGY 189-90 (Brent D. Shaw ed., 1998) (1980) (noting humanitarian rhetoric in ancient writers, although criticizing it for reinforcing the institution of slavery rather than weakening it);
83. MARK V. TUSHNET, THE AMERICAN LAW OF SLAVERY 1810-1860: CONSIDERATIONS OF HUMANITY AND INTEREST (1981) (arguing that "[s]outhern slave law as a whole can be viewed as reproducing this interplay between humanity and interest," id. at 5-6, and analyzing examples of a limited humanitarianism in Southern beliefs about the treatment of slaves).
84. We are not suggesting the psychological torture illustrated below was carried out by CIA agents. Rather it was carried out by people who had become convinced that the CIA paradigm is modern, scientific, and superior. How this model came to be adopted in recent years, even by some people in the U.S. military, which has a strong tradition of opposition to torture in general and psychological torture in particular, is a tangled story that cannot be repeated here. MCCOY, supra note 9, goes most thoroughly into the techniques themselves and famous psychologist Donald O. Hebb's theory of regression to an infantile state, on which they rest. See supra note 139 and accompanying text. But see MAYER, supra note 27; PHILIPPE SANDS, TORTURE TEAM: RUMSFELD'S MEMO AND THE BETRAYAL OF AMERICAN VALUES (2008);
85. THE TRAUMA OF PSYCHOLOGICAL TORTURE, supra note 22.
86. E-mail from [redacted name] to Valerie E. Caproni, Gen. Counsel, Fed. Bureau of Investigation, available at http://www.aclu.org/torturefoia/released/ FBI-5053-5054.pdf.
87. Large numbers of similar memos are available in JAMEEL JAFFER & AMRIT SINGH, ADMINISTRATION OF TORTURE: A DOCUMENTARY RECORD FROM WASHINGTON TO ABU GHRAIB AND BEYOND (2007).
88. $6 Million Awarded in False Confession Lawsuit, MSNBC.COM (Aug. 31, 2006, 9:35:50 PM), http://www.msnbc.msn.com/id/14609924/.
89. See Scott Shane and Mark Mazzetti, In Adopting Harsh Tactics, No Look at Past Use, N.Y. TIMES (Apr. 22, 2009), http://www.nytimes.com/2009/04/22/us/ politics/22detain.html (noting Bush Administration's unawareness that methods were partly copied from those used against American POWs in the Korean War to wring false confessions).
90. M. Gregg Bloche, Op-Ed., Torture-Lite: It's Wrong, and It Might Work, WASH. POST (May 27, 2011), http://www.washingtonpost.com/opinions/torture-lite- its-wrong-and-it-might-work/2011/05/19/AGWIVzCH-story.html.
91. The model acknowledges that learned helplessness cannot be counted on to provide reliable information in a short amount of time. See Bloche, supra. Following up on false leads can divert the energies of large numbers of personnel and, in that way, can actually damage national security. Ron Suskind reports that precisely this diversion happened during the interrogation of Abu Zubaydah. RON SUSKIND, THE ONE PERCENT DOCTRINE: DEEP INSIDE AMERICA'S PURSUIT OF ITS ENEMIES SINCE 9/11 115-16 (2006) (reporting that "[t]housands of uniformed men and women raced in a panic to each ⋯ target" that Zubaydah told his interrogators about).
92. See, e.g., HEADQUARTERS, DEP'T OF THE ARMY, FIELD MANUAL 34-52: INTELLIGENCE INTERROGATION 1-8 (1992), available at http://www.fas.org/irp/ doddir/army/fm34-52.pdf.
93. This version of the Field Manual was superseded by another version in 2006. See HEADQUARTERS, DEP'T OF THE ARMY, FIELD MANUAL 2-22.3: HUMAN INTELLIGENCE COLLECTOR OPERATIONS (2006), available at http://www.cfr.org/ intelligence/human-intelligence-collector-operations-us-army-field-manual- intelligence-interrogations/p11394.
94. "Such government occupation of the self is at odds with constitutional mandate." Seth F. Kreimer, Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror, 6 U. PA. J. CONST. L. 278, 299 (2003).
95. Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1681, 1726-27 (2005).