How Not to Argue That Waterboarding Isn’t Torture

With a few obvious exceptions, I try to avoid directly criticizing scholars with whom I disagree.  But I feel compelled to say a few words about a recent Jurist editorial in which a professor, a former Army JAG (a group for whom I have the utmost respect), argues that waterboarding is not torture.  (It also argues that a CIA interrogator would be “certainly able” to raise the defense of necessity, an idea I’ve criticized before.)

The editorial’s argument proceeds in four steps.  First, it notes, correctly, that the Torture Convention does not itself define what acts inflict severe physical or mental pain or suffering.  Second, it claims, also correctly, that one way to determine what acts qualify as torture is to examine prior judicial decisions that address the issue.  Third, it argues, with some justification, that the leading international case interpreting “severe pain or suffering” is Ireland v. United Kingdom, decided by the European Court of Human Rights in 1978.

But then comes the fourth step, in which the editorial argues that Ireland indicates that waterboarding is not torture — and there the editorial goes off the rails.  Here are the relevant paragraphs:

In Ireland, the Court considered the use of five investigative measures known as “the five techniques” which were practiced by British authorities for periods of “four or five” days pending or during interrogation sessions.

• Wall-standing: Forcing the detainee to stand for some period of hours in a stress position described as “spread-eagled against the wall, with their fingers put high above their head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers.” Wall-standing was practiced for up to 30 hours with occasional periods for rest.
• Hooding: Placing a dark hood over the head of the detainee and keeping it on for prolonged periods of time.
• Subjection to noise: Holding the detainee in a room where there was a continuous loud and hissing noise.
• Deprivation of Sleep: Depriving detainee of sleep for prolonged periods of time.
• Deprivation of Food and Drink: Reducing the food and drink to suspects pending interrogations.

Considering the level of interrogation standards set out in the Ireland case, the conclusion is clear. Even the worst of the CIA techniques that were authorized – waterboarding – would not constitute torture (the CIA method is similar to what we have done hundreds and hundreds of times to our own military special operations soldiers in military training courses on escape and survival).

The problem is that the conclusion in no way follows from Ireland.  Ireland itself did not consider waterboarding, so it can only support the idea that waterboarding is not torture at the level of principle — which seems to be what the author is getting at with his “considering the level of interrogation standards set out in the Ireland case” comment.  But there the author’s argument ends.  He does not tell us what the principle is.  He does not tell us why we should consider waterboarding to be no different than the five techniques in light of the (unidentified) principle.  Instead, he simply tosses in the throwaway line about waterboarding being used on US troops, implying that, under Ireland, no interrogation practice the US has used on its own troops can be considered torture.

But that isn’t even remotely convincing.  To begin with, the author’s claim is simply factually incorrect — as I have pointed out before, the CIA’s own Inspector General concluded that the actual waterboarding was “for real” and “more poignant and convincing” than the SERE waterboarding.  More importantly, though, nothing in Ireland suggests that an interrogation practice cannot constitute torture if a country uses it to train its own soldiers to resist interrogation.  Indeed, it is nearly impossible to extract any general principle from the decision, which disposes of the torture issue in a a couple of sentences in a single paragraph (para. 167) and somehow manages to find that the five techniques do not inflict severe physical or mental pain or suffering despite concluding that they lead to “intense physical and mental suffering” and to “acute psychiatric disturbances”!

So where does the author find the principle governing whether a particular interrogation practice qualifies as torture?  Precisely nowhere.  His claim that waterboarding is not torture represents nothing more than his unsupported opinion.  That’s ironic, given that the ostensible point of his editorial was to avoid such subjective approaches to defining torture.