Lawyers for Torture

The Federalist Society hosted a conference call this morning with themselves to brainstorm strategies for defeating the threat of prosecutions against former Bush officials for devising, authorizing, and justifying a torture program against foreigners the Bush administration deemed to be terrorists:

The lawyers’ group, which was a pipeline for judges in the Bush White House, is hosting a call this morning with National Review writer Andy McCarthy, a former federal prosecutor, lawyer David Rivkin, and Chapman University Law School Dean John Eastman.

The call, which is continuing, has focused on arguing that prosecutions aren’t feasible and that much-criticized memos from the Office of Legal Counsel were perfectly reasonable.

“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.”

Eastman responded to The New York Times’s Scott Shane about the use of waterboarding during the Spanish Inquisition and by the Japanese military, and responded “that psychological reviews of graduates of the military’s SERE program, in which members of the U.S. military were waterboarded, is a more relevant example.

“Why would I go and look at something the Spanish Inquisition did just because it was also called ‘waterboarding’?” he asked.

I have no patience for this level of obtuseness. I think stupid arguments like this are made intentionally, knowing how stupid they are, in the hope that everyone else is as stupid as they are.

I admire writers like Jason Zengerle, who can overturn such canards calmly:

… Ben Smith blogs a conference call the conservative legal group held for journalists to defend the Bush lawyers who wrote the torture memos. One of the Federalist Society members, Chapman University Law School Dean John Eastman, had this to say, according to Smith:

Eastman responded to The New York Times’s Scott Shane about the use of waterboarding during the Spanish Inquisition and by the Japanese military, and responded “that psychological reviews of graduates of the military’s SERE program, in which members of the U.S. military were waterboarded, is a more relevant example.

“Why would I go and look at something the Spanish Inquisition did just because it was also called ‘waterboarding’?” he asked.

The problem with that argument is that the psychologists who conducted those reviews say you can’t compare graduates of the military’s SERE program to the detainees who were waterboarded. As Gary Hazlett, a research scientist who studied stress among soldiers who went through SERE training, told NPR:

“One group has a lot of control and can say no and stop the process at any point along the way, but that really doesn’t hold for the detainee group,” he said in an interview.

Alas, I’m not aware of any psychological reviews done on those who were waterboarded in the Spanish Inquisition, but if such reviews do exist, it seems like those would be the relevant academic literature.

Mark Thompson takes on the other gibberer:

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.  …

It’s not torture if you agree to it and can stop it any time you want to. It’s the difference between the family dentist and Dr. Szell in The Marathon Man.