Two Mistaken Defenses of Torture

Both Humblelawstudent and Stuart Taylor have criticized my previous post.  Both misunderstand the federal torture statute and the concept of torture in important — and unfortunately all too common — ways, so it is worth explaining their errors in a separate post.

Let’s begin with HLS.  He claims that, contrary to my assertion, “the statute requires the interrogator to actually cause “severe mental pain or suffering,” because “'[t]hreatening’ is only torture where the threat of the ‘infliction of several physical pain or suffering’ causes “severe mental pain or suffering.”  That is incorrect, although the poor drafting of the statute makes it an easy mistake to make.  Again, here is the text of the 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.

The elements of torture are contained in the first paragraph of s. 2340.  As defined, the actus reus of the crime consists of three elements: (1) an “act”; (2) the commission of that act by a “person acting under color of law”; and (3) the commission of that act “upon another person within his custody or control.”  (1) is a conduct element; (2) and (3) are circumstance elements.  The mens rea of the crime is then the commission of the act with the specific intent to inflict “severe physical or mental pain or suffering.”

Notice what is missing from the crime: a consequence element.  Nothing in paragraph one requires the act to actually cause “severe physical or mental pain or suffering”; to be guilty of torture, the interrogator must simply specifically intend to cause it.  If he specifically intends to cause “severe physical or mental pain or suffering” but fails, he has still committed the crime.

To be sure, it is easy to misunderstand the crime as HLS does, assuming that the second paragraph of s. 2340 means that torture requires the act to cause a particular consequence.  The statute is not well drafted.  But paragraph two simply defines what it is that the interrogator must specifically intend to do — he must specifically intend his act to cause “severe mental pain or suffering,” which is defined as “prolonged mental harm.”  In other words, to be guilty of torture, the interrogator must specifically intend to cause “prolonged mental harm”; whether he actually causes such harm is irrelevant.

And how does he do that?  How does an interrogator specifically intend to cause “prolonged mental harm”?  That question is answered by the first quoted subparagraphs of paragraph two: an interrogator specifically intends to cause “prolonged mental harm” if he actually inflicts “severe physical pain or suffering” capable of causing such mental harm, or if he threatens to inflict “severe physical pain or suffering” capable of causing such mental harm.  Differently put, the interrogator cannot be said to have specifically intended to cause “severe physical or mental pain or suffering” if his actual violence or his threats of violence are not capable of producing “prolonged mental harm.”  Whether he actually produces such harm is irrelevant.

Again, HLS’s fundamental mistake is to assume that the federal torture statute contains a consequence element.  It doesn’t, as the above analysis indicates.  Need more proof?  Consider the Convention Against Torture and the Rome Statute.  Here are their definitions of the crime:

CAT, art. 1(1): For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.

Rome Statute, art. 7(2)(e): “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.

Notice the difference?  Both CAT and the Rome Statute define torture as a crime of consequence: the intentional conduct must actually cause severe pain or suffering; it is not enough for the interrogator to specifically intend to cause it.  The federal torture statute, by contrast, only requires the specific intent.

Now, onto Taylor.  Taylor’s criticism, once you cut through the bombast, is more serious, though still mistaken.  Here is what he wrote:

In addition, it is fatuous for Heller to claim that interrogators who threaten to cause (or who do cause) cause short-term “severe mental pain or suffering” in the colloquial sense must therefore “specifically intend” to cause (or even to threaten) severe mental pain in the statutory sense, which requires proof of “prolonged mental harm.” The same is true even if one assumes that the interrogator intends to threaten severe physical pain. Yes, such a threat is intended to cause severe mental pain in the colloquial, short-term sense. But it clearly would not be specifically intended to cause prolonged mental harm — not unless the interrogator’s only motivation is sadism, which no honest person has claimed.

First, like HLS, Taylor does not understand that torture does not require proof that “prolonged mental harm” actually resulted from the waterboarding; again, the crime only requires proof that the interrogator specifically intended to cause such prolonged harm.  But Taylor’s mistake does not actually affect the core of his argument, which is that, when we delve into the minds of the waterboarders, we find only the subjective intent to cause short-term mental harm.  Differently put, Taylor believes that the interrogator specifically intends to cause severe mental harm — the threat of death — only for the duration of the waterboarding; once the waterboarding ends, the specific intent to cause severe mental harm ends.

That is not a ludicrous position, but it is incorrect.  If we assume that that the CIA interrogators honestly believed that one act of waterboarding would normally be enough to convince a detainee to speak, Taylor would have an argument — in such a situation, the interrogators would not have needed to intend to cause “prolonged” mental harm, because the specific intent to cause transitory mental harm (lasting the duration of the waterboarding) would have been enough.  But that assumption is clearly false, given how often the CIA interrogators waterboarded the detainees.  Waterboarding a detainee 183 times (or even just multiple times) is a clear indication that the interrogators were fully aware that only a series of waterboardings would suffice to terrify a detainee into talking.  The detainee — particularly a hardened, well-trained terrorist — might not fear death in the first waterboarding.  Perhaps not even in the first few.  But enough waterboardings?  Eventually the detainee would realize that his interrogators might kill him if he didn’t eventually talk.

The point of the CIA’s waterboarding, then, was precisely to create prolonged mental harm in the mind of the detainee.  The interrogator wanted the detainee to fear death from the first waterboarding until the final waterboarding (however many that was) that convinced him to talk.  And more than that: the interrogator wanted the detainee’s fear of death to escalate with each waterboarding, because that escalation was the key to breaking down his resistance.

This is a much more convincing explanation of the purpose of waterboarding than Taylor’s.  Taylor would have us believe that each of the 183 waterboardings to which Khalid Sheikh Mohammed was subjected were completely independent of each other — that although the interrogators wanted to make KSM fear death during each waterboarding, they had no desire to make him fear death between waterboardings.  But that is absurd: if the CIA interrogators did not want the fear of death to carry over between waterboardings, it made no sense for them to waterboard him 183 times.  If KSM could resist talking despite the fear of death once, and if his fear of death did not grow over time, why would they continue to waterboard him?  Wouldn’t they have simply said, “bummer, he’s too tough to be convinced to talk by the short-term threat of death.  We will have to stop waterboarding him, because we are not trying to cause him to suffer prolonged mental harm by making him increasingly afraid that we will kill him if he doesn’t talk”?

They didn’t say that, of course, and they didn’t stop waterboarding him.  And the reason is clear: because they were not specifically intending to cause KSM only short-term mental harm.  They were specifically intending to cause him prolonged mental harm — harm that lasted long enough, and escalated far enough, to convince him to talk.  And that is his waterboarding, and all the other waterboardings like it, were torture.

A final point: although this process of creating an escalating fear of death through multiple waterboardings is sadistic, no one is claiming — Taylor’s strawman aside — that the interrogators are motivated by sadism.  They are motivated by the desire to convince the detainee to talk, which they accomplish by using multiple acts of waterboard to heighten the detainee’s fear of death.