Daily Kos diarist, drational, has an excellent piece up on the recommended list over there that looks at the OLC memos from the perspective of a medical doctor. The interesting insight he provides is that the OLC’s legal reasoning actually got worse after Jack Goldsmith rescinded the John Yoo memos. You might remember that Yoo had defined torture as something that caused “a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.” By inference, anything that failed to bring about these conditions was not torture. Yoo also judged that waterboarding “inflicts no pain or actual harm whatsoever, [and] does not, in our view, inflict “severe pain and suffering”.”

However, the CIA soon discovered that waterboarding was not actually harmless. And an Inspector General’s report found that the CIA Office of Medical Services (OMS) had not been consulted when the waterboarding protocol was developed. In 2005, the OLC put in new strictures, including the provision of a handy tracheotomy kit.

…a detainee could suffer spasms of the larynx that would prevent him from breathing even when the application of water is stopped and the detainee is returned to an upright position. In the event of such spasms, a qualified physician would immediately intervene to address the problem, and, if necessary, the intervening physician would perform a tracheotomy…. we are informed that the necessary emergency medical equipment is always present- although not visible to the detainee- during any application of the waterboard.

As drational notes, this change in 2005 was even worse than the original standard. John Yoo judged that waterboarding was permissible because it didn’t cause life-threatening harm or permanent damage. When the CIA discovered that waterboarding was indeed life-threatening, the OLC didn’t rescind their permission to use the technique, instead they ordered doctors to be ready to perform tracheotomies. Even under Yoo’s ridiculously high standard for defining torture, the post-2005 procedures were in violation. After all, Yoo didn’t say it was illegal to use procedures that would cause death, organ failure, or permanent injury unless someone performed an emergency tracheotomy.

So, even though Jack Goldsmith has earned praise for rescinding the 2002 John Yoo memos, his actions actually failed to improve matters. In the hands of his successor at OLC, Stephen Bradbury, the standard got worse.

What’s also odd about this is that we’ve been led to believe that waterboarding was abandoned long before 2005. Here’s Cheney from December 2008:

Vice President Dick Cheney, in another stunning admission during his campaign to burnish the Bush administration’s legacy, said he personally authorized the “enhanced interrogations” of 33 suspected terrorist detainees and approved the waterboarding of three so-called “high-value” prisoners.

“I signed off on it; others did, as well, too,” Cheney said about the waterboarding, a practice of simulated drowning done by strapping a person to a board, covering the face with a cloth and then pouring water over it, a torture technique dating back at least to the Spanish Inquisition. The victim feels as if he is drowning.

Cheney identified the three waterboarded detainees as al-Qaeda figures Abu Zubaydah, Khalid Sheik Mohammed and al Nashiri. “That’s it, those three guys,” Cheney said in an interview with the right-wing Washington Times.

And here’s former DNI John Negroponte in an January 2008 interview with the National Journal:

Negroponte: I get concerned that we’re too retrospective and tend to look in the rearview mirror too often at things that happened four or even six years ago. We’ve taken steps to address the issue of interrogations, for instance, and waterboarding has not been used in years. It wasn’t used when I was director of national intelligence, nor even for a few years before that.

Negroponte became the first DNI in April 2005. In February 2008, then-DCI Michael Hayden told Congress the following:

“Waterboarding has been used on only three detainees,” Hayden told the Senate Intelligence Committee, publicly specifying the number of subjects and naming them for the first time, as Congress considers banning the technique.

Those subjected to waterboarding were al Qaeda suspects Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri, Hayden said. [The CIA’s destroyed torture tapes, remember, documented the interrogations of Zubaydah and Nashiri.]

He said waterboarding has not been used in five years, but it was used then because of concerns of imminent catastrophic attacks on the United States and because authorities had limited knowledge of al Qaeda.

So, here we have this story being told by several high level members of the Bush administration that all waterboarding had ceased in 2003, and yet look at the tense of the 2005 OLC memo:

…we are informed that the necessary emergency medical equipment is always present- although not visible to the detainee- during any application of the waterboard.

Is? When? In 2003? With those three guys?

And why were they reauthorizing waterboarding in 2005 if they had abandoned it two years ealier?