Finally, Spencer Ackerman gets his document. It's Philip Zelikow's 2006 State Department memo arguing that the interrogation techniques already authorized by Bush were clearly illegal – and way outside the bounds of American precedent:
Zelikow knew that this torture violated core values in American history:
“We are unaware of any precedent in World War II, the Korean War, the Vietnam War, or any subsequent conflict for authorized, systematic interrogation practices similar to those in question here,” Zelikow wrote, “even where the prisoners were presumed to be unlawful combatants.”
Other “advanced governments that face potentially catastrophic terrorist dangers” have “abandoned several of the techniques in question here,” Zelikow’s memo writes. The State Department blacked out a section of text that apparently listed those governments.
“Coercive” interrogation methods “least likely to be sustained” by judges were “the waterboard, walling, dousing, stress positions, and cramped confinement,” Zelikow advised, “especially [when] viewed cumulatively.” (Most CIA torture regimens made use of multiple torture techniques.) “Those most likely to be sustained are the basic detention conditions and, in context, the corrective techniques, such as slaps.”
(I presume "advanced governments" refers in part to Israel whose Supreme Court struck down the torture the Israelis once inflicted on Palestinian terror suspects.) But what's crucial here is that while I think there's no doubt that what was authorized was torture, the legal bar against cruel, inhuman, and degrading interrogation techniques which also "shock the conscience" is and was much broader. The Reagan-signed Convention Against Torture is not pulling a Yoo, trying to parse legitimate forms of torture from the illegitimate. It is insisting on the broadest definition possible. Here is a passage from Reagan's signing statement:
The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment.
My italics. Note that the law is very clear that no national emergency can trump this prohibition – precisely because torture is invariably defended as an emergency. Zelikow clearly understood this. As presumably did Condi Rice. And let me repeat what was actually done to the prisoners in plain English:
using dogs to terrorize prisoners; stripping detainees naked and hooding them; isolating people in windowless cells for weeks and even months on end; freezing prisoners to near-death and reviving them and repeating the hypothermia; contorting prisoners into stress positions that create unbearable pain in the muscles and joints; cramming prisoners into upright coffins in painful positions with minimal air; near-drowning, on a waterboard, of human beings—in one case 183 times—even after they have cooperated with interrogators.
The gut test: if an American were subjected to these techniques in an Iranian prison, would we regard it as torture? It's not really close, is it?
(Photo: a Khmer Rouge waterboard, preserved in Cambodia's Genocide Museum.)