KSM Waterboarded 183 Times in One Month

by Kevin Jon Heller

More evidence that the CIA interrogators did not rely in good faith on the OLC memos: Bradbury’s 30 May 2005 memo acknowledges (p. 37) that the CIA Inspector General’s report found that the CIA waterboarded Khalid Sheikh Mohammed 183 times in March 2003 and Abu Zubaydah 83 times in August 2002.  That regime far surpasses the CIA’s own internal guidelines for the use of waterboarding, as they are summarized by Bradbury’s memo:

[W]here authorized, it may be used for two “sessions” per day of up to two hours.  During a session, water may be applied up to six times for ten seconds or longer (but never more than 40 seconds).  In a 24-hour period, a detainee may be subjected to up to twelve minutes of water application.  Additionally, the waterboard may be used on as many as five days during a 30-day approval period.

I’m not particularly good at math, but even I can figure out that these guidelines do not permit a detainee to be waterboarded 83 times in one month — much less 183 times.  The maximum number of waterboarding applications is 12 per day (two sessions, six applications per session), so the maximum number of waterboarding applications in a month is 60 (12 applications per day, five days during the month).  The CIA’s waterboarding of KSM thus exceeded what the OLC authorized by more than 200%.  (Zubaydah by 38%.)

There is also no question that the CIA’s excessive use of waterboarding was not authorized by the OLC.  Bybee’s 1 August 2002 memo was the only one issued before the CIA waterboarded KSM and Zubaydah.  And that memo makes clear (see particularly pp. 4-6) that Bybee’s authorization was based on representations by the CIA that its waterboarding regime followed the guidelines summarized above, which were based on the use of waterboarding for training purposes at the SERE school.  Yet the CIA completely ignored the SERE guidelines when it waterboarded KSM and Zubaydah.  (See also the footnote from the 10 May 2005 memo I quoted yesterday.)

Is there any remaining doubt that the CIA interrogators who waterboarded KSM and Zubaydah should be prosecuted?

http://opiniojuris.org/2009/04/18/ksm-waterboarded-183-times-in-five-days/

12 Responses

  1. What is remarkable about this memo, if you insist that it be taken both literally and mathematically, is the assumption both KSM and Zubaydah begain their waterboarding on the first day of a month and ended on the last day. Given that the policy only says “30 days” and not a calendar month, what are the chances that would happen. Of course, given the difference, there is no reason that the policy’s “a 30-day approval period” corresponds to a calendar month.

    If the 30 day approval period began and ended on the 15th of the month, then there would be two periods in any given single month and then “five days during a 30-day approval period” could mean ten days in a calendar month, five in the first period and five in the second period. This is 120 applications, not 60, and that puts Zubaydah well within policy and put KSM 23 applications over policy.

    But you miss the important point. KSM was captured on March 1, 2003 in Pakistan. There was obviously some handover delay and policy and every other narrative suggests that they tried other methods before reverting to waterboarding. Assuming that there was a delay of several weeks before they started the process, then to literally and mathematically accept that “the CIA waterboarded Khalid Sheikh Mohammed 183 times in March 2003″ means first that they had to have a 30 day approval period started when they were planning the capture, and it had to expire five days before the end of the month to get maximum availability. You need the first period to expire on March 25 so you can load all of its five days into the 21-25th period and then load the five days from the next period into the 26-30th period.

    I am not suggesting that such behavior would be good policy. I am only saying that it is a logical possiblity if you insist on taking the words as written on the page as absolutely precise and then claim you can calculate mathematical consequences.

    Or maybe March, 2003 means “starting in March, 2003″ or “around the time of March 2003, instead of literally meaning the 30 dfays from March 1 to March 30. Then the reasonable thing to assume is that the sessions were probably not out of policy unless someone says so.

  2. I have absolutely no idea what your point is.  The bottom line is all that is important: CIA guidelines permit 60 waterboarding applications in a 30-day period; the CIA waterboarded KSM 183 times in a 30-day period, thereby exceeding OLC’s authorization. 

    The CIA seems to have abided by the five-day rule — KSM said he was waterboarded on five separate occasions.  We know know that he was referring to dozens of wateboarding applications on each occasion.

  3. “What is remarkable about this memo, if you insist that it be taken both literally and mathematically…”
    Oh my, how surreal is that.
    But there’s no mystery here Kevin, Howard’s point ius simply it’s perfectly OK to torture prisoners and that laws are pointless subjective exercises in moral relativism that just get everybody confused when they should be concentrating on beating the wogs into submission.
     
     

  4. The comment says “CIA guidelines permit 60 waterboarding applications in a 30-day period” suggesting that this is a maximum in any 30 days. However, the text quoted in the post does not say that. It talks about “five days during a 30-day approval period” If a second approval period starts when the previous one ends, and if you are free to decide which five days you use during an approval period, then by putting the five days of first period at the period end and the five days of the second period at the period start you have ten days occuring within a 30 day elapsed time period but split between two 30 day approval periods.

    This is not about what is morally right or wrong. It is about what is logically or mathematically correct or wrong.

    If I had to make a point, I would suggest that it is irrational to assume that KSM was actually waterboarded 183 times in the calendar month of March, 2003 no matter what the text of the memo says. He was captured on March 1 and so the process could not have started until rather late in the month. There weren’t enough days left to do the job. If they started late, why cram everything into the calendar month and then stop on April 1? If you want results, you would spread things out. Do we believe that the astrologers in the CIA told them to stop on March 30 because the stars were not auspicious in April? For someone who can be sceptical of any statement he dislikes, you are awfully trusting of the literal and absolute accuracy of a phrase in a document when it seems to prove some point you wish were true.

    In the document these two numbers are a quote and a paraphrase from a letter whose text was not attached. I think some wording got confused in the transfer across documents. Maybe the original wording meant “starting in March” rather that “in March.” Either that, or the CIA can bend space and time and squeeze 60 to 90 days subjective time into the last week of March.

  5. Meanwhile, back in reality. . .
    “Is there any remaining doubt that the CIA interrogators who waterboarded KSM and Zubaydah should be prosecuted?”
    I actually don’t think they should be prosecuted until after their superiors have been. It’s more important to nail the leaders, Bush and Cheney first and foremost.  None of this shoud be done piecemeal, but as a unfied prosecution by a dedicated team under a Special Prosecutor.
    It became absolutely clear last week an independent Special Prosecutor is absolutely essential. The adminstration, sadly, simply cannot be entrusted to handle it because of the influence and complicity of holdovers at DOJ, DoD, and CIA. Obama says he wants to look forward — fine, then he should support Congress setting up a Special Prosecutor to handle it.
    Congress needs to act, and we do NOT need a Truth Commission, we need a dedicated prosecutor who will clean up this mess once and for all and put the perpetrators behind bars. If the Republicans in the Senate get in the way, the Democrats should simply “go nuclear” and force it through.
    Enough is enough — and Bybee should be impeached  and removed from the bench right now simply for signing the memo.
    The interrogators should at least be disciplined and dishonorably discharged from government service.
    The lawyers, doctors, and psychologists who were involved at any level should be prosecuted to the full extent of the law for war crimes, and they should also be barred for life from professional practice or teaching.
     

  6. For the record, of course I believe that the architects of the torture regime should be prosecuted.

  7. I am still confused. The whole idea of waterboarding is that you think you are drowning when you really aren’t. It is plausibly terrifying the first time, which is why soldiers are exposed to it during SERE. However, after you experience it three or four times I expect that you begin to realize that you aren’t going to drown. After a dozen times, you probably get used to it and while it is certainly unpleasant you are no longer terrified or afraid for your life. I certainly wouldn’t want to have to endure this kind of treatment, but since the primary purpose is to terrify, doesn’t it lose its purpose by the 183 application? What the hell did anyone expect to get from this?

    For the record, I think that Afganistan is a real country and Geneva signatory, that the Taliban were firmly in control, and that its army was a real army even if they didn’t wear uniforms. Its soldiers were entitled to lawful combatant status if they asked for it (which they would have to do because the Taliban did not issue the required military ID cards which would automatically establish identity), The Third Geneva Convention clearly prohibits any force during questioning and any punishment for refusing to answer questions. So the clear violation of international law occurred long before we start to argue about whether waterboarding is a form of torture.

    Those who are administration critics but who still insist that the Afghan army wasn’t worthy of combatant status and should be treated as criminals have already started down the slippery slope that leads to torture, and they are just trying to draw some line part way down the slope to claim that it is OK if they stop before sliding that far.

  8. I think it might be more accurate to say that waterboarding is one of the most painful, terrifying, and traumatising experiences a human being can be subjected to.  There is no way that you or I or anyone who hasn’t experienced it can comprehend the pure physiological effects of torture.  I doubt those effects somehow wear off over time.  We are hardwired to survive and I don’t know if it is possible to adapt to being killed, whether or not you know in your rational mind that it’s a simulation.  There is in fact no “reasonable” response to being tortured, just as there is no reasonable reliance on a law that authorizes torture.

  9. As for Mr. Gilbert’s comments about the Taliban military, the legitimacy of the Taliban military is inapposite to the discussion of Khalid Sheikh Mohammed and Abu Zubaydah.  Mohammed was a member of Al Qaeda and was operating out of Kuwait.  Zubaydah was affiliated with Al Qaeda, though possibly not a member.  Neither of these men have claimed to be members of the Taliban military, nor is there any evidence that they were.

  10. I’m the only one in this world. Can please someone join me in this life? Or maybe death…

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  1. [...] set out the memos (see the story in the New York times and the discussion by Kevin Jon Heller at Opinio Juris). In an earlier post on this blog, I stated that there are reasonable (though not [...]

  2. [...] According to the 2005 memo’s C.I.A. officers also used waterboarding at least 83 times in August 2002 against Abu Zubaydah and 183 times in March 2003 against Khalid Shaikh Mohammed, according to a 2005 Justice Department legal memorandum. (Recall, [...]