Not Reading What You Defend

I had fully intended to take a lengthy hiatus from torture-blogging, but this story just magnifies why I’ve become so frustrated over claims that the program authorized by the Bybee memo is clearly not “torture” within the meaning of the law. 

Andy McCarthy in a telephone conference today:

“As far as mental suffering is concerned that involves the creation on the part of the person the tactic is used on of a fear of imminent death,” said McCarthy. “The few people that waterboarding was actually used on were actually told that they were not going to be killed by the tactic.”

“Even if they didn’t tell you they weren’t going to kill you, after the first or second time you sort of get the point that there is not imminent death to be feared,” he said. “There’s not a prosecutable case.”

This statement was in reference to the fact that the relevant US criminal torture statute requires that an act be specifically intended to inflict “severe physical or mental pain or suffering.” 

Not surprisingly, I have a lot of problems with McCarthy’s statements.  But the biggest problem is that he totally misses the point of the very memos he purports to defend.

First and foremost, even if the only relevant standard for an infliction of “severe mental pain or suffering” is the creation of a “fear of imminent death” – even though the statute sets forth three other grounds for finding “severe mental pain or suffering – the Bybee memo explicitly states that “we find that the use of the waterboard constitutes a threat of imminent death.”  (Bybee memo, page 15).   

Furthermore, the Bybee memo, which again McCarthy is trying to defend as providing the legal justification for the use of waterboarding and the entire interrogation “program,” explicitly states that “Zubaydah has come to expect that no physical harm will be done to him.  By using these techniques in increasing intensity and in rapid succession, the goal would be to dislodge this expectation.”  (Bybee Memo, page 15). 

So, contra McCarthy, the repeated use of waterboarding does not result in a diminished “fear of imminent death” – the entire justification for repeatedly using it (and other methods) was to increase Zubaydah’s fears of imminent death.  On the other hand, if McCarthy is correct that repeated use of waterboarding would remove the “fear of imminent death,” then that would mean that the CIA’s entire justification for its effectiveness was wrong, since that justification was explicitly that repeatedly using the tactic created an ever-increasing fear of physical harm.

Indeed, the Bybee memo explicitly concedes that waterboarding “constitutes a threat of imminent death and fulfills the predicate act requirement [for a finding of torture] under the statute.”  (Bybee Memo, page 15).  It further acknowledges that “we are uncertain whether the course of conduct [proposed by the CIA] would constitute a predicate act” for a finding of torture. 

The sole reason given in the Bybee memorandum for why waterboarding and the entire course of conduct proposed by the CIA would not be “torture” under the meaning of the law was that the interrogator would lack the specific intent to cause “prolonged” mental harm as required under the statute.  Bybee reaches this conclusion entirely on the basis of the fact that SERE training does not result in prolonged mental harm to those who undertake it.  There are obvious flaws in this analogy, which defenders of the program almost always fail to consider – ie, that SERE is a voluntary program, and that the program proposed by the CIA was likely to be far more intense than SERE training since the CIA’s stated goal was to gradually wear down the detainee’s “expect[ation] that no physical harm will be done to him.” 

But the bottom line here is that I continue to be frustrated by the manner in which Bush Administration defender have far more certainty that the CIA’s program was “not torture” than the very memo upon which they purport to rely and seek to defend.