Stuart Taylor’s Apologia for Torture

David Luban and Stuart Taylor are having an interesting exchange at Balkinization over whether the CIA’s use of waterboarding qualifies as torture under the federal torture statute, 18 USC 2340.  Luban accuses Taylor of embracing “the fundamental trick used by the torture lawyers: pretending that the legal definition of ‘torture’ is something technical rather than ‘colloquial’,” when in fact there is no meaningful difference between the two concerning torture’s requirement that the interrogator intentionally inflict “severe physical or mental pain or suffering.”  Taylor then accuses Luban of “grossly” misleading Balkinization’s readers about his argument, defending his claim that CIA waterboarding does not qualify as torture as follows (my emphasis):

The statute specifically sub-defines “severe mental pain” as occurring (for purposes of the statute) only if there is (among other things) “prolonged mental harm.”

Even OPR implicitly conceded that “prolonged mental harm” must mean more than a few minutes or hours of severe mental pain when it gave up on challenging the Bybee-Yoo interpretation of that phrase after Attorney General Mukasey’s response had shown OPR’s draft criticism to be an embarrassment to OPR.

And the statute’s specific intent requirement — which Luban conveniently ignores — makes it utterly clear that an interrogator who in good faith believes that neither prolonged mental harm nor severe physical pain would result from his actions cannot have violated the torture statute.

As Margolis found, 10,000-plus SERE trainees have almost unanimously reported that waterboarding caused no severe physical pain and no prolonged mental harm. This is dispositive as to “physical” and — together with the specific intent requirement — almost dispositive as to “prolonged,” given the assumptions that the CIA gave Bybee and Yoo about how waterboarding would be done and would be limited.

This sounds convincing — until one realizes that Taylor has conveniently ignored part of the torture statute:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

…

(C) the threat of imminent death

As sec. 2340(2)(A) makes inordinately clear, an interrogator does not have to actually cause “severe mental pain or suffering” to be guilty of torture; he is equally guilty if he merely threatens to cause “severe mental pain or suffering” or “imminent death.”  That is a critical distinction, because it indicates why Taylor’s reliance on SERE waterboarding is anything but “dispositive”: even if we accept that SERE waterboarding and real waterboarding actually inflict the same amount of physical pain, they clearly do not threaten to inflict the same amount of physical pain.  SERE trainees know full well that they are not going to be waterboarded to death.  Detainees have no such guarantee, which is what makes waterboarding so terrifying.

And, of course, creating such terror is the entire point — the “specific intent” — of actual waterboarding.  There is a reason that interrogators want to make the detainee fear that he will be drowned if he does not cooperate: it is that fear that is supposed to convince the detainee to talk.  For waterboarding not to be torture, therefore, we have to assume that interrogators believe that detainees will talk even if they don’t fear being seriously injured or killed by the waterboarding.  But that is absurd: people like Taylor want to use waterboarding precisely because they believe lesser forms of interrogation are not “convincing” enough to crack hardened and highly-trained terrorists.

Taylor has no convincing objection to this analysis — which is no doubt why his response to Luban simply ignores the “threat” prong of the federal torture statute.  His only possible response is that the mental harm caused by real waterboarding’s inherent threat of death does not qualify as “prolonged.”  Once again, though, it is easy to see that the SERE analogy is inapposite: SERE waterboarding does not cause “prolonged mental harm” because the trainees know that, no matter how often they are waterboarded, they will not be killed.  A detainee, by contrast, necessarily suffers “prolonged mental harm” because, having been intentionally made to fear for his life once, he has no guarantee that he will not be waterboarded again — this time to death.  It thus makes no difference whether the detainee is only waterboarded once or, like Khalid Sheikh Mohammed, 183 times.  From the very first moment he is waterboarded, he suffers ongoing — prolonged — mental harm.

Taylor closes his reply to Luban by claiming “thus does Luban descend from weak, to weaker, to weakest, while consistently misleading readers throughout.”  That’s an ironic claim, given Taylor’s selective discussion of the federal torture statute.