Meyerhoff: When does pain become torture?

Physician struggles to make sense of interrogation memos

By Andrea Meyerhoff, MD

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What is too much pain?

That's the question Bush administration lawyers answered when they legalized the now-infamous interrogation techniques.

As a former federal counterterrorism official who served through Sept. 11, the anthrax mailings and the onset of the wars in Afghanistan and Iraq, I followed the recent release of Justice Department interrogation memos with interest.

But, despite reading them numerous times, I still can't understand them. How could these memos guide interrogators? As a physician, I found statements that defied reason. Experiences with patients contradict statements in the memos.

As such, the memos are a violation of the public trust and warrant investigation. The public deserves a full account of their production on which to render judgment.

Now in the public domain are two memos from Justice's Office of Legal Counsel dated Aug. 1, 2002, on the subject of interrogation practices, authored by John Yoo and signed by Jay Bybee. One was written for White House counsel Alberto Gonzales, the other for the Central Intelligence Agency.

In the first, Yoo legalized harsh interrogation practices by stating that they fell short of a definition of severe pain and therefore were not torture:

"Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

This is a perplexing statement.

Specific symptoms are associated with the failure of individual organs such as a heart, a kidney, or a lung. But pain is not prominent among any of them.

Someone with end-stage lung disease has the terrifying sensation that he cannot get enough air. In the final hours, the patient sweats. His face turns from deep red to blue. He leans forward and grasps the rails of the hospital bed so hard his knuckles turn white. He is intensely anxious and knows he is about to die.

At what point in the approximation of this experience should the interrogator decide it's time to stop?

Maybe Yoo meant to equate the physical pain of torture with the pain of an injury serious enough to result in organ failure.

Someone who jumps out of a four-story window sustains multiple broken bones. The fractured pelvis severs an artery that results in hemorrhage so massive that vital organs can't get enough blood and begin to fail. As liver and kidneys shut down, the doctors race to stabilize the patient to take her to the operating room to fix the fracture. But the rate of the bleeding outstrips their best efforts. The patient dies in the emergency room.

Would it be permissible for an interrogator to deliver a blow hard enough to cause a fracture that doesn't result in organ failure, impaired function, or death? Is it OK to break a finger? A jaw?

I've read Yoo's definition many times and still don't know what it means. I'm certain of one thing. With death, there is no pain at all.

I'm not convinced that Mr. Yoo meant to hurt people, so it must be that it didn't matter to him that he didn't make sense.

The memo to the CIA set limits on allowable waterboarding. The volume of water poured on a saturated cloth covering the nose and mouth was: "a cup or small watering can" such that "air flow is slightly restricted for 20 to 40 seconds." After "three or four breaths," the practice could be repeated for "up to 20 minutes."

These numbers suggest hard scientific data, reminiscent of what we learn in a clinical trial of a drug vs. a placebo. OLC statements beg a few questions. How were these numbers obtained? How many subjects experienced 40 seconds of waterboarding in order to select this duration of exposure? Were earlier dose-ranging studies performed at 10, 20, 60 seconds? What happens to a person exposed to more than 20 minutes of repeated waterboarding? To what technique was waterboarding compared in order for investigators to conclude that it was the most effective?