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.

The pro-waterboarding side’s real argument isn’t that waterboarding, etc., aren’t torture, which I think is a clearly losing argument that frankly disturbs the hell out of me.  By making that argument, they implicitly concede that whether it is “effective” is meaningless.

Similarly, the focus of the anti-waterboarding, etc. arguments is also too much on the morality issue.  I say this not because the argument is wrong, but because it’s so clearly right.  By even arguing it, we give the belief that it may be something less than torture more credibility than it deserves, thereby marginally increasing the possibility that it will become acceptable in even situations where thousands of lives are not potentially at stake.

The trouble is that for the vast majority of people, the issue isn’t whether torture is moral or immoral, but whether the results it provides warrant the breach of morality.  For some of us (and I include myself in that group), the morality breach is never or almost never worth it.  But that’s just not going to be the case for the vast majority of people in just about any nation.   Similarly, for some small number of people, there just is no morality issue at all.

But most people in a free society are far more concerned about their personal morality and decisionmaking than they are about their government’s morality.  This is as it perhaps should be – what good is having a moral government if all of its citizens are robbing and looting, murdering and beating?  And of course, a huge part of being a moral person is taking care of one’s family.  This means that relatively few people have the time or the interest to concern themselves much with the morality of their government, at least as long as their government is dealing with them and the people they know in a relatively moral fashion. 

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That said, the posts (and subsequent responsive comment) with which E.D. and Mr. Schwenkler take issue is emblematic of something that has been particularly frustrating to me over the last several days or so.  Specifically, I’m frustrated at the certainty with which proponents of waterboarding and various other procedures outlined in the OLC memos proclaim that those procedures were clearly “not torture.”*

The fact is, whatever one thinks of the legal acumen demonstrated (or, more accurately, not demonstrated) in the OLC memos, and especially the Bybee memo, they do not provide a basis for concluding that waterboarding, et al – especially when combined in one continuous program – are “clearly” not torture.  The Bybee memo itself states quite explicitly that waterboarding in particular is pretty damn close to being torture, going so far as to say that it is a “predicate act” for a finding of torture.  So if you’re going to rely on the Bybee memo as an accurate depiction of the law (which it isn’t – seriously, I’ve seen associates fired for less shoddy memos), then at the very least you have to acknowledge that these actions come pretty damn close to being torture, and that there is hardly anything outrageous or unhinged about calling these acts torture. 

In other words, if you’re going to rely upon a piece of legal analysis as proof that something is clearly “not torture,” then you probably shouldn’t rely upon a piece of legal analysis that (shoddy as it may be) concludes that said something is pretty damned close to being torture. 

*I’m going to give our resident dissenter, Mr. Nuevo, a pass on this since he’s been pretty candid that he’s not sure about the legal aspects of waterboarding.

UPDATE: Cross-posted at Donklephant.