The Torture Memos Are Not Just Sick, They're Full of Lies: A Closer Look at the Bybee Memo

Reading the just released August 1, 2002 memo by John Yoo (reportedly ghosting for Jay Bybee, then Assistant Attorney General of the United States, and now an Appeals Court Judge for the Ninth Circuit), to John Rizzo, then Acting General Counsel for the CIA, on the interrogation of Abu Zubaydah, is a surreal experience. There is so much that is strange and awful in it, it's hard to know where to begin.

But one thing that struck me right off the bat was the similarity of the statistics presented in the early part of the memo with the statement of Dr. Jerald Ogrisseg, a psychologist with Joint Personnel Recovery Agency, United States Joint Forces Command, before the Senate Committee on Armed Services on June 17, 2008.

Let's review some of the relevant text.

Yoo/Bybee write, "This letter memorializes our previous oral advice, given on July 24, 2002, and July 26, 2002, that the proposed conduct would not violate this prohibition." The prohibition referred to is the U.S. torture statute, Section 2340A, Title 18 of the U.S. Code.

In his statement, Ogrisseg states that July 24, 2002 was the date of his memorandum “Psychological Effects of Resistance Training.” Dr. Ogrisseg was then still a psychologist working for the Survival, Evasion, Resistance, and Escape (SERE) at the United States Air Force Survival School at Fairchild Air Force Base, Washington. Only a few days after filing his report with the commander of Joint Personnel Recovery Agency, the parent Pentagon organization for all the military SERE programs, among other functions, on July 29 he became a civilian SERE psychologist, with a number of various duties.

More from Dr. Ogrisseg:

Mr. Chairman, with regards to my July 2002 communications with then Lt Col Dan Baumgartner, the then Chief of Staff of JPRA, my recollection is that Lt Col Baumgartner called me directly, probably on the same day that I generated my 24 July 2002 memorandum that I referenced earlier. He indicated that he was getting asked “from above” about the psychological effects of resistance training. I had no idea who was asking Lt Col Baumgartner “from above” and did not ask him to clarify who was asking. I recall reminding Lt Col Baumgartner in general terms about program evaluation data I’d presented in May of 2002 at the SERE Psychology Conference. These data, which were collected on Air Force survival students at different points of time during training, indicated that training significantly improves students confidence in their ability to adhere to the Code of Conduct.

Why might Bybee, Rizzo, Yoo or others have been interested in Ogrisseg's study of SERE psychological effects? The initial portions of the Aug. 1, 2002 memo are concerned primarily with demonstrating that the techniques migrating into the interrogation arena from SERE training programs were not harmful, physiologically or psychologically, at least not in a way that would violate the law as construed by the OLC attorneys.

Despite the presence of a "SERE training psychologist" from the very beginning of Zubaydah's interrogation. Captured in March 2002, Zubaydah told the ICRC he was tortured from the time of capture. He was allegedly waterboarded by June 2002. Now, unhappy with their intel, CIA was planning to move into an "increased pressure phase" on Zubaydah. OLC notes in the memo that it is relying on information about Zubaydah and Yoo/Bybee warns Rizzo if the "facts in your possession [are] contrary to the facts outlined here", then their "advice would not necessarily apply."

Were they suspicious about the situation as reported by Rizzo? In an article Thursday evening, Emptywheel noticed the reticence. The memo states (emphasis added):

According to your reports, Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods.....
Nowhere else, significantly, does Yoo feel the need to quote so selectively and in such detail about what CIA Acting Counsel John Rizzo had represented to him.

Meanwhile, this is what Dan Coleman -- an FBI guy with deep knowledge of al Qaeda--had to say about AZ in Ron Suskind's One Percent Doctrine:
Meanwhile, Dan Coleman and other knowledgeable members of the tribe of al Qaeda hunters at CIA were reading Zubaydah's top secret diary and shaking their heads.

"This guy is insane, certifiable, split personality," Coleman told a top official at FBI after a few days reviewing the Zubaydah haul.

In any case, the OLC felt it had to make the SERE techniques look as innocuous as possible. The techniques to be approved included the "attention grasp", "walling," facial slaps, "facial hold," cramped confinement, sleep deprivation, "wall standing" (really slamming a prisoner against the wall violently), insects placed in a confinement box, waterboarding, and stress positions.

Bybee/Yoo reeled off a series of statistics and dubious assurances to Rizzo:

Through your consultation with various individuals responsible for such [SERE] training, you have learned that these techniques have been used as elements of a course of conduct without any reported incident of prolonged mental harm.

The memo mentions that hardly any complaints re SERE training were made to Congress, that one SERE "official" (name redacted) had trained 10,000 students in over three and a half years with only two dropouts, and "rare" requests for psychological counseling. The memo continues:

You have consulted with [redacted] who has ten years of experience with SERE training [about two lines redacted] He stated that, during those ten years, insofar as he is aware none of the individuals who completed the program suffered any adverse mental health effects.....

Additionally, you received a memorandum from the [redacted, about one line] which you supplied to us. [Redacted] has experience with the use of all these procedures in a course of conduct, with the exception of the insect in the confinement box and the waterboard. This memorandum confirms that the use of these procedures has not resulted in any reported instances of prolonged mental harm, and very few instances of immediate and temporary adverse psychological responses during the training. Of the 26,829 students trained from 1992 through 2001 in the Air Force SERE training, 4.3 percent of those students had contact with psychology services. Of those 4.3 percent, only 3.2 percent were pulled from the program for psychological reasons. Thus, out of the students trained overall, only 0.14 percent were pulled from the program for psychological reasons.

Surely one can do amazing things with statistics, and these last statistics seem very similar to those Dr. Ogrisseg had found in his research, presented the same day as the first oral approval by OLC to CIA in the Zubaydah request.

From Dr. Ogrisseg's statement:

Then, I recall Lt Col Baumgartner asking me if I thought training was harmful to students. This question and my responses to it formed the basis of my 24 July 2002 memorandum to Lt Col Baumgartner, which is the best record of the conversation that we had. In general terms, I indicated that a very small percentage of students (4.3%) had adverse psychological reactions to our training, but we (the survival psychology staff) were able to re-motivate almost all of those having adverse reactions (96.8%) to complete training. Thus, less than .2% of the roughly 14,000 students were unable to complete training due to psychological problems which arose during training.

The numbers aren't an exact match -- except that 4.3 percent figure -- but close enough. Perhaps the original figures from his July 24 paper would fit even better, but then it's likely OLC was playing fast and loose with the figures. They are certainly close enough to assume with strong presumption that it was Ogrisseg's July 24 memorandum that was being quoted in this part of the memo.

Too bad they didn't look farther into what Ogrisseg then said he told Lt. Col. Baumgartner (emphasis added):

Finally, as indicated in my 24 July 2002 memorandum, Lt Col Baumgartner asked me if I’d never seen the waterboard used, and what I thought of it. I told him that I had seen it used while observing Navy training the previous year, and that I would never recommend using it in training. He asked me why and if I thought it was physically dangerous. I responded that I didn’t see anyone getting physically injured when I observed it, and as stated in my memorandum, the Navy was applying it to medically screened trainees with medical personnel immediately available to monitor and intervene if necessary. However, that wasn’t the point, as psychologically the waterboard produced capitulation and compliance with instructor demands 100% of the time. During debriefings following training, students who had experienced the waterboard expressed extreme avoidance attitudes such as a likelihood to further comply with any demands made of them if brought near the waterboard again. I told Lt Col Baumgartner that waterboarding was completely inconsistent with the stress inoculation paradigm of training that we used, and was more indicative of a practice that produces learned helplessness – a training result we tried strenuously to avoid. The final area I recall Lt Col Baumgartner asking me about were my thoughts on using the waterboard against the enemy. I asked [sic] responded by asking, “wouldn’t that be illegal?” He replied that some people were asking from above about the utility of using this technique against the enemy for the same reasons I wouldn’t use it in training. I replied that I wouldn’t go down that path because, aside from being illegal, it was a completely different arena that we in the Survival School didn’t know anything about. When we concluded the talk, Lt Col Baumgartner asked if I would write him a memo reflecting what we’d just discussed regarding the psychological effects of training so he could include it with other materials he was sending up. He also asked if I would comment on both the physical and psychological effects of the waterboard. I replied that I would, and drafted the memo.

Investigators or prosecutors might want to look at Dr. Ogrisseg's July 24 memorandum, because it appears to be prime evidence for OLC cherry-picking of results regarding the effects of the interrogation techniques in question. Yoo or Bybee or Rizzo, or all three, took the statistics that made their case, and ignored anything else.

We also know Bybee saw the July SERE memorandum from his own testimony before the Senate Armed Services Committee:

Before drafting the opinions, Mr. Yoo, the Deputy Assistant Attorney General for the OLC, had met with Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, to discuss the subjects he intended to address in the opinions. In testimony before the House Judiciary Committee, Mr. Yoo refused to say whether or not he ever discussed or received information about SERE techniques as the memos were being drafted. When asked whether he had discussed SERE techniques with Judge Gonzales, Mr. Addington, Mr. Yoo, Mr. Rizzo or other senior administration lawyers, DoD General Counsel Jim Haynes testified that he “did discuss SERE techniques with other people in the administration.” NSC Legal Advisor John Bellinger said that “some of the legal analyses of proposed interrogation techniques that were prepared by the Department of Justice... did refer to the psychological effects of resistance training.”

(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released.

The OLC and CIA also ignored a wealth of other published information about the effects of SERE "stress inoculation," such as the June 2000 article, "Assessment of Humans Experiencing Uncontrollable Stress: The SERE Course," in

Special Warfare

(emphases added):


As shown in the charts on page 7, SERE stress caused significant changes in students' hormone levels. Recorded changes in cortisol levels were some of the greatest ever documented in humans. In some cases, the changes noted among the trainees were greater than the changes noted in patients undergoing heart surgery....

Changes in testosterone levels were similarly remarkable: In some cases, testosterone dropped from normal levels to castration levels within eight hours.

Or how about this May 2000 article in Biological Psychiatry, Hormone profiles in humans experiencing military survival training?

Conclusions: The stress of military survival training produced dramatic alterations in cortisol, percent free cortisol, testosterone, and thyroid indices. Different types of stressors had varying effects on the neuroendocrine indices. The degree of neuroendocrine changes observed may have significant implications for subsequent responses to stress.

Looking at more psychological than physiological symptoms, one well-known 2001 study in the August 2001 edition of the American Journal of Psychiatry looked at dissociative symptoms, e.g., depersonalization, derealization, psychic or emotional numbing, general cognitive confusion (emphasis added):

The current study was designed to assess the nature and prevalence of dissociative symptoms in healthy humans experiencing acute, uncontrollable stress during U.S. Army survival training. METHOD: In study 1, 94 subjects completed the Clinician-Administered Dissociative States Scale after exposure to the stress of survival training. In study 2, 59 subjects completed the Brief Trauma Questionnaire before acute stress and the dissociative states scale before and after acute stress. A randomly selected group of subjects in study 2 completed a health problems questionnaire after acute stress. RESULTS: In study 1, 96% of subjects reported dissociative symptoms in response to acute stress. Total scores, as well as individual item scores, on the dissociation scale were significantly lower in Special Forces soldiers compared to general infantry troops. In study 2, 42% of subjects reported dissociative symptoms before stress and 96% reported them after acute stress.

96 percent! Well, these statistics are very different from those that appeared to say that less than 2% of SERE subjects had any significant psychological symptoms. It's all in how you frame it in the research world, and apparently in the legal world as well.

In summary, even an initial cursory look at the August 1, 2002 Bybee memo on the "Interrogation of Al Qaeda Operative" shows that the memos were written in bad faith, were meant to deceive, and utilized a memorandum by Jerald Ogrisseg that explicitly warned against using at least some of the techniques (waterboarding) that were approved by OLC.

I'm confident that other researchers will find much more wrong with the recently released OLC memos. Their extremely poor quality and their misrepresentations of medical and psychological information make them very hard to imagine using as the basis of "good faith" representations for those CIA interrogators for whom Attorney General Holder granted immunity, i.e., those "who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice..."

I suppose a lot rides now on how you define "authoritative legal advice."

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