Bush-era interrogation memo: No torture without 'severe pain' intent

April 16th 2009

• Story Highlights
• Memo: To violate torture law, must have intent to inflict severe suffering
• Obama says releasing memos vital to maintaining transparency, accountability
• Legal memos offered guidance to CIA on "enhanced interrogation"
• No prosecution for actions consistent with memos, official says

WASHINGTON (CNN) -- Interrogation tactics such as waterboarding, sleep deprivation and slapping did not violate laws against torture when there was no intent to cause severe pain, according to a Bush-era memo on the tactics released Thursday.

"To violate the statute, an individual must have the specific intent to inflict severe pain or suffering," said an August 2002 memo from then-Assistant Attorney General Jay Bybee to John Rizzo, who was acting general counsel for the CIA.

"Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. ... We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent," Bybee wrote.

Other memos allowed the use of such tactics as keeping a detainee naked and in some cases in a diaper, and putting detainees on a liquid diet.

The Bybee opinion was sought on 10 interrogation tactics in the case of suspected al Qaeda leader Abu Zubaydah.

On waterboarding, in which a person gets the sensation of drowning, the memo said, "although the waterboard constitutes a threat of imminent death, prolonged mental harm must nonetheless result" to violate the law.

The memo also authorized keeping Zubaydah in a dark, confined space small enough to restrict the individual's movement for no more than two hours at a time. In addition, putting a harmless insect into the box with Zubaydah, who "appears to have a fear of insects," and telling him it is a stinging insect would be allowed, as long as Zubaydah was informed the insect's sting would not be fatal or cause severe pain.

"If, however, you were to place the insect in the box without informing him that you are doing so ... you should not affirmatively lead him to believe that any insect is present which has a sting that could produce severe pain or suffering or even cause his death," the memo said.

Authorities also were allowed to slap a detainee's face "to induce shock, surprise or humiliation" and strike his abdomen with the back of the hand in order to disabuse a detainee's notion that he will not be touched, the memos said.

Bybee noted in the memo that the CIA agreed all tactics should be used under expert supervision. Other memos said waterboarding can be used only if the CIA has "credible intelligence that a terrorist attack is imminent" and if a detainee is believed to have information that could prevent, disrupt or delay an attack, and other methods fail to elicit the information.