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The Normalization of Torture

By Jack M. Balkin

Our President today vetoed a bill that -- once again, for the umpteenth time -- would have rendered even more unlawful some or all of the CIA's "enhanced interrogation techniques." Not much new in the President's veto statement -- the CIA techniques are not "torture"; they are not "cruel treatment" prohibited by Common Article 3; and whadda ya know? -- they're even "humane"!

The President also raised an absurd constitutional objection to section 326, which would have required the Administration to issue a report to the congressional intelligence committees -- a classified report -- explaining how the Administration has purported to be complying with section 1003 of the Detainee Treatment Act of 2005 (the "McCain Amendment"), which prohibits the use of cruel, inhuman and degrading treatment, and with section 6 of the Military Commissions Act of 2006, which gives the President certain authority to interpret Common Article 3 of the Geneva Conventions (including its prohibitions on torture and cruel treatment). Imagine that -- the Administration actually being compelled to explain to the legislature how it is implementing federal statutory and treaty requirements. Outrageous! That must be unconstitutional!

To make matters worse, this week we have one of our more esteemed legal commentators, Stuart Taylor, publishing a column criticizing the Congress for "lurching" to an "extreme" by trying to require the CIA to use those techniques that have been proven tried and true -- and sufficient -- by the military and the FBI. What's Stuart's main concern? That the bill would have prohibited the CIA from "bluffing to scare a prisoner into thinking that he might be physically abused." That's right -- because the CIA should be permitted to threaten detainees with unlawful physical abuse, the Democratic bill was "lurching" to an "extreme" and the President was right to veto it.

More absurd, even, is Taylor's exoneration of the lawyers in the Bush Administration. Stuart argues that, now that he thinks about it, it really is a hard legal question whether waterboarding is torture or cruel treatment -- and therefore currently unlawful -- after all. Stuart doesn't ever explain in what sense waterboarding might not be "cruel." His attention is devoted to the torture statute. "The 1994 law's extraordinarily narrow definition of 'torture,'" he writes, "is critical to understanding why a reasonable lawyer could declare waterboarding personally 'repugnant,' as did Mukasey during his confirmation hearing, while at the same time believing that if it is short in duration and carefully controlled, it is not necessarily 'torture.'"

Now, I would be the first to complain -- and I have -- about Congress's narrowed statutory definition of torture, which in some respects guts our obligations under the Convention Against Torture. Nonetheless, the law does categorically prohibit the intentional infliction of severe physical suffering on a detainee overseas. And as I've written here several times before, if anything in the law can be said with certainty, it is that waterboarding, a form of drowning, is designed precisely to inflict severe, acute physical suffering.

So how can Stuart Taylor conclude that reasonable minds might disagree? Here's what he writes:

Does waterboarding inflict severe physical pain or suffering? That depends on the inherently elastic meaning of "severe." Waterboarding is clearly more severe than (say) a single face slap. But it is clearly less severe than (say) yanking out a prisoner's fingernails. The fact that the military has long waterboarded its own soldiers in training to teach interrogation-resistance techniques cuts against the idea that it inflicts severe physical suffering. I also suspect that many a lawyer's interpretation of "severe" might turn on how close in time his decision was to a terrorist mass murder that he fears could soon be repeated. Just as gravity bends light, the need to prevent a catastrophe bends judgment on such subjective questions. And it should.

Let's briefly take these "arguments" one at a time, not that they actually warrant any serious consideration.

First: Stuart can think of some techniques that result in more severe physical suffering than waterboarding, such as, supposedly, yanking out fingernails. He might be wrong about the fingernails -- as one person who has endured waterboarding explained: "If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question. It's horrible, terrible, inhuman torture. I can hardly imagine worse. I'd prefer permanent damage and disability to experiencing it again. I'd give up anything, say anything, do anything." But even so, Taylor is of course correct that we can all think of some techniques that would result in more severe suffering than waterboarding. And what, exactly, does that prove? Suffice it to say that "We're not quite as sadistic as the Spanish Inquisition" is not a defense, nor a valid form of statutory construction.

Second, Stuart writes that "the fact that the military has long waterboarded its own soldiers in training to teach interrogation-resistance techniques cuts against the idea that it inflicts severe physical suffering." This is simply a non-sequitur.

Of course waterboarding does, and is specifically intended to, result in severe physical suffering. That's the whole point of it: The suffering is so severe that no detainee can resist it for more than a few seconds. The only way to deny this conclusion is to engage in willful blindness -- to studiously resist actually reading any part of the vast historical literature on water tortures. (This is, alas, not an uncommon problem: As Alice Ristroph explains in a terrific recent piece:

If we actually seek a serious, realistic evaluation of torture, . . . it is not as if we lack empirical information about torture. The unfortunate truth is that torture is a practice with which the human race has extensive historical experience. Admittedly, I have no expertise as a historian. But I can read, and for others with expertise in reading, there are several historical studies of torture available, most undertaken before September 11, 2001, at a time when our interest in the subject was somewhat less selfishly partisan. The studies are rich in detail, and often depressing, but they . . . should be the starting point for discussions of torture today.)

Which brings us to Stuart Taylor's third and final "argument": "Many a lawyer's interpretation of 'severe' might turn on how close in time his decision was to a terrorist mass murder that he fears could soon be repeated. Just as gravity bends light, the need to prevent a catastrophe bends judgment on such subjective questions."

This is very revealing, and I think it is really what's underlying Taylor's (and Mukasey's, and Bradbury's, and Bush's) insistence that the statutory question is "difficult": Basically, that we should not take the statutory restriction seriously at all if our motives are pure enough. If the interrogator, and his apologist lawyers and doctors and officials, are genuinely fearful of terrorist mass murder (and who wouldn't be?), and if they sincerely conclude (albeit without the aid of any actual empirical evidence) that torture is necessary to prevent such "catastrophe," well, then, the physical suffering of their victims just magically becomes less "severe," doesn't it?

Bent judgment, indeed.

Full post as published by Balkinization on March 08, 2008 (boomark / email).