In a post today, Rick Moran at Rightwing Nuthouse voices disagreement with a post by John Hinderaker of Powerline asserting that waterboarding does not meet the legal definition of torture. Rick does so with the same bald assertions that the entire far left is using - in essence, "waterboarding meets the legal definition of torture because I say it does." Rick also goes one further. He maintains that any reference to the fact that waterboarding is done on our own soldiers as part of SERE training is a strawman that should be ignored. Rick has completely lost the plot on this.
To his credit, Rick begins his argument by referencing both the U.S. law on torture and that contained within the U.N. Convention Against Torture. Both define torture using similar wording - as "SEVERE pain or suffering" be it physical or emotional (emphasis added). Unfortunately, after pointing to the law, Rick simply slaps a bald and conclusory label of "torture" on waterboarding. It is not the stuff of intellectual rigor.
My argument with Rick in this post is not because he sees waterboarding as torture in the philosophical sense. Certainly waterboarding involves physical coercion, though at a low level, and physical coercion is the jumping off point for what we commonly call torture. I think his opinion misguided but not wholly unreasonable. (Update: See this post at Big Lizards for one of the more cogent arguments on that point.) That said, for the purposes of this post, the context at issue is wholly a legal one with tremendous consequence at stake for our nation.
Rick, just like Andrew Sullivan with whom he credits having altered his views on waterboarding - is jumping to a conclusion with no analytical underpinnings and then refusing to admit that any reasonable person looking at the legal definition of "torture" could arrive at a different conclusion. There is not a shred of intellectual honesty to this. Its the fanatical emotionalism of the left, where reality is simply whatever they want it to be and there is no room for principled disagreement.
The bottom line is that when words are put in law, each and every word must be given its plain meaning. If Congress or the UN wanted to provide a very limited definition of the word "torture," then they would have dropped the word "severe" from the definition. Indeed, they could have easily refined the definition of torture by making it unlawful to use "physical coercion" designed to solicit information or perhaps "physical coercion that could reasonably be expected to cause any discomfort." Then there really would be a bright line that the use of waterboarding has crossed. And, in fact, that is the way Rick and everyone on the left is portraying this. They are pretending the word "severe" is meaningless.
The word "severe," as it modifies pain and suffering, must be given a plain and reasonable meaning and that meaning must be satisfied before an act can be called "torture" within the contemplation of the law. That said, lets do a short intellectual exercise to get us to a reasonable interpretation of the word "severe." As I said in a post below:
Putting aside the conclusory labels of the far left for a moment, and before delving into the legalese, let's apply some common sense to arrive at a working definition of [the word "severe" as it is used in the definition of the word,] "torture." Its much harder than it seems as you move away from techniques that are obviously torture. Let's start with the obvious ones. The al Qaeda field manual for torture, liberated by U.S. troops in an April 2007 raid on an al Qaeda safe house / torture chamber, provides some examples along with helpful illustrations. Here are the first two of those illustrations.
Here is a photo of the back of one man found in the al Qaeda safe house who had been subject to a few of these methods:
That is evidence of actual torture.
There are many more methods of interrogation / punishment listed - and illustrated -in the book. They include electrocution, breaking of limbs, flogging, plucking out of eyes, burning with a blow torch or hot iron, etc.
We know intuitively that each one of these methods named above is actual "torture." Why? What are the common threads?
1. All of the techniques described above are meant to cause extremes of pain.
2. Each will result in serious and likely permanent injury.
3. The torture will cause suffering lasting long beyond the actual application of the torture.
4. The vast majority of these techniques run a real risk of being fatal.
So when we look at the pain and suffering caused by incontestable acts of torture, we can define the word "severe" in reference to the conditions above. But what happens when you start to take away one or more of these conditions? Moreover, what happens when you take away ALL FOUR of the conditions. If you do that, then do you drop below the legal threshold for "torture" because the pain or suffering caused is not "severe?" If you answer no, then how do you provide a bright line test for the word "severe" that stays true to its plain meaning?
Update: One person who answered "no" to the above question and who has attempted to redefine "torture" is Rick's mentor on this, excitable Andy Sullivan. It appears in the Daily Dish that Andy would rework the word "severe" so as to create a wholly subjective, ends-based test. According to Andy, "torture" should be defined as "to subject captives to such levels of physical or mental pain or suffering that they have reached the limit of their ability to withhold information in the face of psychological and physical hardship." So "severe" would then mean that if interrogators actually get a terrorist to start talking by using any technique that could remotely be cast as having caused any modicum of pain or suffering, then it becomes illegal "torture" as soon as the terrorist begins to talk. The prima facie proof of torture is the information solicited, irrespective of the severity of the technique used. Andy certainly makes malleable beyond recognition the word "severe." And it would essentially end the ability of our CIA interrogators to . . . well, interrogate prisoners. This bit of sophistry doesn't even come close to making the "sorry but nice try" category.
The OLC attorneys, when they did their legal analysis on the question of whether waterboarding constituted torture, essentially followed the analysis we just used in the intellectual exercise above. They used plain language definitions of the words and existing precedent. The analysis done in Bybee was that waterboarding causes no physical pain but rather causes panic lasting no more than twenty to forty seconds. It causes no lasting suffering, with the effects subsiding immediately after the process is halted. While waterboarding causes the sensation of drowning, there is no risk whatsoever of that occurring. Further, the terrorists were monitored at all times for signs of medical distress. Thus, waterboarding, while coercive, did not rise to the level of "torture" as defined at law or in treaty. I concur.
As to Rick's "strawman," Rick argues that the fact that the military uses waterboarding on our servicemen as a part of SERE training is meaningless for a plethora of reasons, all of which roughly boil down to the fact that SERE training is voluntary and can be stopped at anytime by the serviceman. Fair enough - and indeed, I concur that our use of waterboarding in SERE has little probative value, standing alone, in assessing whether waterboarding is torture under the law when used on high value terrorists. But that alone does not make the fact that our military uses waterboarding as part of its training a strawman. What the experience gleaned from SERE shows - and the reason it was relied upon in the Bybee memo (see pg. 6 of the memo) - was not to establish the legality of waterboarding, but rather to establish that it could be done with an assurance of safety, without any long term effect, and indeed, with the effects of waterboarding ending immediately after the procedure was halted. All of that was key in concluding that waterboarding did not rise to the level of causing "severe . . . pain or suffering."
Having read the memos in question and the law, I do not think waterboarding legally meets the definition of "torture" in law or in treaty. At a minimum, the OLC attorneys presented a colorable legal argument in their memos.
The bottom line is, as I noted earlier, that words have meaning. When particular words are used in a law, those words must each be given fair weight. They can't be wished away or ignored on emotional whim. The OLC spent over one hundred pages examining each and every word in law and treaty to arrive at a reasonable legal opinion on waterboarding. It can be disagreed with, but if it is reasonable, it cannot under any set of circumstances be considered criminal.
The far left, with Rick's very grudging acceptance, are ready to let loose the dogs of war on the Bush Administration and criminalize what amounts to a policy difference. If we are now criminalizing policy difference and seeking retribution by destroying the careers and lives of OLC attorneys, then we are on a downhill slide of far more import to the fabric of this nation then our current economic woes. At the very minimum, we have likely gutted our intelligence capability for far into the future. What attorney will now give an honest and fair guidance to the CIA on any controversial act they are considering? At any rate, Rick, you have acted the part of a very useful idiot on this issue.
Update: Dafyyd ab Hugh at Big Lizards has an exceptional post that I linked in an update above but which I want to be sure to highlight. His argument on this issue comes at it from the standpoint of how the left is attempt to redefine the common meaning of words. It truly is, as Dafyyd points out, Orwellian.