In justifying the legality of controversial CIA interrogation techniques, the Bush administration's Justice Department relied heavily on one of the U.S. military's own training programs, newly released memos on government interrogation techniques reveal. The Survival Evasion Resistance Escape, or SERE, course is designed primarily for pilots and Special Forces soldiers who are at high risk of capture and interrogation.
Four legal memos released yesterday by the Justice Department in response to a Freedom of Information Act lawsuit outline in graphic detail the methods used to interrogate suspected terrorists and include numerous techniques used in SERE training. The techniques outlined in the memos range from sleep deprivation to hand slaps to the face, but perhaps the most severe and controversial is a simulated drowning procedure known as waterboarding.
Bush administration lawyers asserted in these legal opinions that waterboarding is "not physically painful." But Assistant Attorney General Jay Bybee also wrote on Aug. 1, 2002, that its use does "constitute a threat of imminent death." He added, "The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering."
The memos point to the thousands of military trainees who have undergone waterboarding during the SERE training. Few reported any lasting mental trauma, the memos say. The absence of such lingering effects, the lawyers argue, shows that the technique did not violate prohibitions against torture. "There is no evidence for such prolonged mental harm in the CIA's experience with the technique, and we understand that it has been used thousands of times (albeit in a somewhat different way) during the military training of United States personnel, without producing any evidence of such harm," one memo notes.
President Obama and Attorney General Eric Holder both announced that CIA interrogators would not face legal sanction because their actions had been sanctioned by the Justice Department.
But the legal reliance on the experiences of SERE trainees raises other issues. During the SERE training, students are free to quit and leave the course, which the memos note has occurred in several instances after SERE students were waterboarded.
But for the Bush administration lawyers, the absence of widely documented lingering mental and physical effects in the purely voluntary SERE training course was enough to satisfy the prohibition against "lasting mental harm" outlined in antitorture conventions and domestic U.S. law. "Although there are obvious differences between training exercises and actual interrogations, the fact that the United States uses similar techniques on its own troops for training purposes strongly suggests that these techniques are not categorically beyond the pale," one memo says.
But there too, the memos acknowledge problems with comparing the results of the SERE training to the interrogation of suspects who could not be certain whether their lives were in peril. "SERE training does not involve repeated applications of the waterboard," one memo notes.
Both the CIA and President Bush previously acknowledged publicly that interrogators used waterboarding on three detainees. Over the years, numerous reports have surfaced—mostly attributed to unnamed intelligence officials—that one of the detainees, Khalid Sheikh Mohammed, was subjected to the procedure only for a few minutes or a few seconds. But the new memos reveal that "the CIA used the waterboard extensively" during his interrogation, although it does not offer additional details .
Another key difference between the CIA program and the SERE training is that SERE students are not subjected to the combined use of the CIA's techniques, which included forced nudity, extended dietary manipulation, forced stress positions, sleep deprivation, and other techniques "which are intended to 'create a state of learned helplessness,' " according to the memos.
This combination of techniques did raise some internal concerns, according to the memos, but the lawyers eventually concluded that with "the interrogation team's diligent monitoring of the effects of combining interrogation techniques, interrogators would not reasonably expect that the combined use of the interrogation methods under consideration, subject to the conditions and safeguards set forth here...would result in severe physical or mental pain or suffering."
The lawyers note uncertainty about how their legal analysis would stand up if challenged in court. "Given the paucity of relevant precedent and the subjective nature of the inquiry, we cannot predict with confidence whether a court would agree with this conclusion," Bybee writes.