Marcy Wheeler, the best torture-blogger out there, finds the following in the OPR:
Goldsmith viewed the Yoo Memo itself as a “blank check” that could be used to justify additional EITs without further DOJ review. Although Yoo told us that he had concluded that the mock burial technique would violate the torture statute, he nevertheless told the client, according to Fredman and Rizzo, that he would “need more time” if they wanted it approved. [my emphasis]
The twelfth techniquewhich Mitchell and Jessen wanted approved but which Yoo excluded because of the rush to approve waterboardingis mock burial.
I know Clive Crook thinks the legal prohibition against torture is so fuzzy he can totally understand why there were such deep good faith discussions about whether using the Khmer Rouge waterboard counted, but "threat of imminent death" is right there in plain English. So even Yoo knew mock burial might be a bit of a problem - but he just needed "more time" to figure out a legal way to defend it, if they needed some kind of legal protection for waterboarding first. Poor guy. Just trying to do his best under difficult circumstances, and the damn Congress never actually clarified specifically that Khmer Rouge techniques memorialized in the Cambodian Museum of Torture were "torture" did they?
Now, it’s not clear whether Mitchell and Jessen ever did use mock burial with Abu Zubaydah. Zubdaydah didn’t mention it in the narrative he gave to the ICRC of his treatment.
But there are two more reasons why Yoo’s refusal to approve mock burial is dangerous for the CIA. First, an FBI agent told CIA and DOJ that the technique was borderline torture. Nevertheless, the CIA asked to have the technique available to it.
Also, any legal discussion of why mock burial would be a problem would focus on how torture statutes prohibit the threat of imminent death. Yet after mock burial was specifically excluded as a torture technique, CIA torturers went on to threaten detainees with a power drill and a gun. In other words, someone at that CIA had already been told, specifically, that they could not use the threat of imminent death on detainees. But on at least two occasions, they did so anyway.
It is these threads that Eric Holder has opened up a preliminary investigation into. But once you start pulling on those threads ...
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