1 Boring Old Man

The Salt Pit and the Bybee Memos
By emptywheel
March 28, 2010

The AP has a long article out providing details behind the Salt Pit death of a detainee named Gul Rahman–a former militant associated with Gulbuddin Hekmatyar who was captured on October 29, 2002 at the home of Hekmatyar’s son-in-law, Dr. Ghairat Baheer, along with the Baheer and three others. A week later, Rahman was separated from the others. He was subjected to stress positions and water dousing and–on November 20–left in 36 degree cold, only to die a few hours later.

Aside from finally providing details on a story that has long been known, the story is interesting for the way it shows the how the CIA’s torture system fit with DOJ’s approvals in the Bybee Memos. The Rahman death shows that CIA’s managers (probably in the Counterterrorism Center) were involved in direct guidance on a technique that got someone killed. That technique was specifically not approved in the Bybee Two memo. But when CTC worked to exonerate the guy in the field – the manager of the Salt Pit – they pointed to the intent language of the Bybee One memo, and claimed that anything short of intending severe pain could not qualify as torture. Ultimately, CIA’s managers used the Get Out of Jail Free Card that John Yoo had written them to prevent accountability for themselves when they gave approval for a technique that got someone killed…

Bybee One and Bybee Two work to pre-authorize some torture and retroactively approve murder

Ultimately, though, this case points to how the Bybee One and Two memos worked in tandem, with Bybee Two authorizing things like waterboarding, and Bybee One including that giant loophole of intent. The AP says that Paul McNulty and Chuck Rosenberg’s reviews of the murder could not prove that the manager of the Salt Pit intended to murder Rahman.

The former U.S. official familiar with the case said federal prosecutors could not prove the CIA officer running the Salt Pit had intended to harm the detainee — a point made in a recently released government document that also disclosed Rahman’s name…

But understand what’s happening here: the manager of the Salt Pit had no fucking clue what he should do with Rahman–he didn’t have the Bybee Two memo, for example. He asked for guidance from his superiors repeatedly, almost certainly CTC. Those superiors approved a SERE technique that had not been approved by OLC, and that technique led to Rahman’s death. And it was CTC that got to write CIA’s summary of what happened in a declination memo that presumably went to DOJ’s own prosecutors. That is, the guys who probably approved an unauthorized technique, the guys who probably had read both Bybee Memos, relied on the intent language of the Bybee One memo to excuse that unauthorized technique, and declare the deliberate exposure of someone to near-freezing temperatures not to be murder or torture…

Motive plays a role in our law in a few instances – like self defense. It’s a consideration in others: 1st degree murder vs second degree murder vs Manslaughter. But I can think of no corollary to the way motive is engaged by these OLC Memos. The point isn’t to get them off the books, or, for that matter, punishing the perpetrators. Going after John Yoo and Jay Bybee, the authors of this malarkey, is even secondary. The point is to expose and call to justice the top guys who both created a system that promoted this, and then actively put it into action.