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.

Picking up on E.D.’s expressed concern about the impact that baleful, or at least hyperbolic, talk radio has on the political process, I thought that Reihan Salam’s parsing of the now infamous Auto-Tune the News 2 video was spot on. If you haven’t seen the video yet you really ought to, so here it is embedded below,

As Reihan points out, the absurdity of Auto-Tune the news, when juxtaposed against the sound and fury of Sean Hannity, does an excellent job of drawing out just how much Hannity and his ilk are in the business of “performing outrage”. Such is the subtle (sometimes less so) art of theatre of the absurd, it’s disparaging of traditional convetnions allow it to point out the gaudy and hollow scarecrows of our culture. So opines E.D.,

Beck’s little faux crying episode during the intro for his 912 project illustrates the fact that he’s all maudlin, all pretend outrage. He’s more like Jack Lucas than David Duke, but that doesn’t make him less dangerous. If anything it makes him more of a threat, because his forum lends him much greater legitimacy. To most critical thinkers it’s obvious that he’s either crazy or pretending, and probably just in it for the ratings, filling a niche – but to the Edwin’s and Poplawski’s of the world, he’s the real deal. His outrage is real. His fears aren’t bogeymen, they’re flesh and bone.

While I share E.D.’s concern about the impact that this theatre of outrage has on our political process, my focus is less on the potential incitement that such pantomiming potentially generates and more about what I take to be a dulling sensation on political discourse generally.
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I’m increasingly coming to the conclusion that both sides of the “Did We Torture?” debate are doing themselves a big disservice in how they approach their arguments.  This perhaps isn’t surprising since I tend to think this is the case on most controversial hot-button topics.

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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I know that we’ve had a bevy of posts on torture and the torture memos of late, but on the estimable Fox News this past Sunday, former head of the CIA Michael Hayden has this interesting bit to say about the Obama administration’s decision to release the memos outlining interrogation techniques used against enemy combatants and what may or may not constitute torture, which caught my ear:

There’s another point, too, that I have to make. And it’s just not the tactical effect of this technique or that. It’s the broader effect on CIA officers.

I mean, if you’re a current CIA officer today — in fact, I know this has happened at the agency after the release of these documents. Officers are saying, “The things I’m doing now — will this happen to me in five year because of the things I am doing now?”

And the answer they’ve been given by senior leadership is the only answer possible, which is, “I can’t guarantee you that won’t happen, but I do know it won’t happen under this president.”

Now, think what that means. The basic foundation of the legitimacy of the agency’s action has shifted from some durability of law to a product of the American political process. That puts agency officers in a horrible position.

So I think the really dangerous effect of this, Chris, is that you will have agency officers stepping back from the kinds of things that the nation expects them to do. I mean, if you were to go to an agency officer today and say, “Go do this,” and, “Why am I authorized to do this?”

And I say, “Well, it’s authorized by the president. The attorney general says it’s lawful. And it’s been briefed to Congress.” That agency officer’s going to say, “Yeah, I know, but I see what’s going on here now. Have you run it by the ACLU? What’s the New York Times editorial board think? Have you discussed this with any potential presidential candidates?”

You’re going to have this agency on the front line of defending you in this current war playing back from the line.

I understand where Hayden is coming from with these remarks, but my inevitable response is: listen, if there is anyone I want critically evaluating the implications of their actions, it’s CIA agents.

Americans often puff their chest and speak loudly about being the freest nation on the planet and I generally don’t disagree with that estimation, at least on a gross level of analysis. But one would be remiss in failing to acknowledge that there are a myriad of subtle, and in some senses not so subtle, ways in which the bureaucratic technocracy of our modern nation-states undermines our freedom (small “f”) while still reinforcing and protecting our Freedom (big ‘f”). The degree to which said technocracy spells out and cultivates an intuitive deference to symbols and centres of authority in our social hierarchy is surprisingly (perhaps not so) ubiquitous.

It is in calling out and challenging these vortexes of power when they extend beyond the acceptable limits of their scope that freedom-fighters from both the liberal and conservative persuasions are at their best. But all too often, the omnipresence of bureaucratic dominance has filtered into our every day lives in such a fashion as to dull the edges of those ideological scythes to a frightening degree. It is this ingrain, institutional, and knee-jerk deference to authority that I can’t help see running throughout every argument that Hayden trots out on this front. [Read more →]

First, let me say that I respect Sonny Bunch.  A lot.  I rarely agree with Sonny, but he is clearly and genuinely interested in engaging those with whom he disagrees. 

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.

I have been very glad to read the many arguments against David Brooks’ column announcing the end of moral philosophy. My own problems with what seems like the cyclical and predictable tendency for new scientific discoveries to signal the end of other modalities of knowing are reasonably well documented on this site. Insofar as I tend to have a knee-jerk reaction to what I often can’t help but see as the aggressive imperial tendencies of some strong science proponents — somewhat ironically, it occurs to me that the most aggressive amongst the proponents are often not themselves members of the scientific community — that is not to say that I question the power of science’s explanatory model. It’s just to say that I think that as powerful as science happens to be that it has certain limits that ought not to crowd out other modalities of knowing. Mark had an excellent post on this point some time back when we were batting about the existence of God.

Wrote Mark,

Indeed, in insisting otherwise, both sides insure the continued conflation of science and religion, and both science and religion get demeaned in the process.  For instance, when religion gets up in arms over the teaching of evolution in science class and demands that intelligent design theory be given equal time – also in science class – it must pretend to be something it is not, and was never intended to be.  Religion is not science, and in attempting to gain acceptance as a science, it allows itself to be treated on the same terms as science.  In other words, it begs to be treated as if it were falsifiable, when the entire point in faith is that it is something that is unfalsifiable.  Worse, it forces religion to get tied up in arguments that have precious little to do with the elements of faith that are so very important: things like morality, conscience, meaning, etc.  And so it loses the forest for the trees, to use a cliche.

But similarly, science demeans itself when it used as a proof of the non-existence of god.  Science is not meant to provide unfalsifiable answers, nor is it intended to answer questions that can only admit of unfalsifiable answers.  To do so is to turn the scientific method on its head.  And in so doing, science demeans itself because it loses part of its very essence.

In all honesty, I think that my own cautionary tendencies around the reach of science are at least in part based on a cultural bug. Canada simply doesn’t house the same degree of religiosity as the US and so I don’t perceive myself to operate day-in-day-out within an environment that houses the same degree of antipathy towards science as many of our commenters here at the League do. To my own mind, and in the minds of most of those with whom I interact, the power and position of science in interpreting the world is largely unassailable, so the more pressing exercise is to stand up for those other, less buttressed but, I would argue, equally valuable modalities of knowing.

Post teaser: discussion of torture memos after the jump. [Read more →]

(Updates below and continuing as more reactions come in…)

You can read the memos here.  Sullivan has some initial thoughts up here:

I do not believe that any American president has ever orchestrated, constructed or so closely monitored the torture of other human beings the way George W. Bush did. It is clear that it is pre-meditated; and it is clear that the parsing of torture techniques that you read in the report is a simply disgusting and repellent piece of dishonesty and bad faith. When you place it alongside the Red Cross’ debriefing of the torture victims, the fit is almost perfect.

Michael Scherer:

The legal memorandum for the CIA, prepared by Assistant Attorney General Jay Bybee, reviewed 10 enhanced techniques for interrogating Zubaydah, and determined that none of them constituted torture under U.S. criminal law. The techniques were: attention grasp, walling (hitting a detainee against a flexible wall), facial hold, facial slap, cramped confinement, wall standing, stress positions, sleep deprivation, insects placed in a confinement box, and waterboarding.

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