It's a novel idea, I realize, but Victoria Toesing points out that critics obviously never read the memos regarding interrogation techniques, nor the documents the memos were based on.
In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard: Our capture and treatment could not "shock the conscience" of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.
The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law's definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.
Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes.
One of the most frustrating things in watching the blathering from the Left about torture is that they haven't a clue what either the laws say nor what the legal rulings about the laws say. For them, they see a procedure that they find uncomfortable (having a bug put on them) and they immediately conclude that such techniques are "torture." Yet torture has never been merely an act that causes discomfort, stress, or fright. Such methods must be intended to cause prolonged physical or mental suffering.
Here's kind of a Cliff Notes version of the torture test:
1. Forcefeed someone dry rice until they are stuffed, then make them drink water until their intestines explode: torture.
2. Pouring water on someone who thinks they are drowning, even though they are not: not torture.
3. Techniques used simply to inflict pain and suffering, such as using POWs for bayonet practice: torture.
4. Pushing someone against a wall with a rolled towel against his neck to prevent whiplash: not torture.
Whenever idiots start comparing waterboarding known terrorists with Japanese war atrocities, you know they don't have a case to make, other than their virulent hatred of (a) the American government and (b) Republicans.
The U.S. doesn't use harsh interrogation techniques on all prisoners, but there are some who aren't going to talk if you are nice to them.
In the summer of 2002, the CIA outlined 10 interrogation methods that would be used only on Abu Zubaydah, who it told the lawyers was "one of the highest ranking members of" al Qaeda, serving as "Usama Bin Laden's senior lieutenant." According to the CIA, Zubaydah had "been involved in every major" al Qaeda terrorist operation including 9/11, and was "planning future terrorist attacks" against U.S. interests.
Most importantly, the lawyers were told that Zubaydah -- who was well-versed in American interrogation techniques, having written al Qaeda's manual on the subject -- "displays no signs of willingness" to provide information and "has come to expect that no physical harm will be done to him." When the usual interrogation methods were used, he had maintained his "unabated desire to kill Americans and Jews."
The CIA and Department of Justice lawyers had two options: continue questioning Zubaydah by a process that had not worked or escalate the interrogation techniques in compliance with U.S. law. They chose the latter.
Those screaming "Torture! Torture!" would rather we continued using ineffective techniques which produce no intelligence rather than waterboard monsters like Zubaydah. In their eyes, it is better that thousands more Americans die in attacks than a terrorist face discomfort. Is it any wonder our enemies see us as weak?
Worse, as Toesing points out, it is obvious that the critics never read either the legal rulings or the memos in question.
There should be a rule that all persons proposing investigation, prosecution or disbarment must read the two memos and all underlying documents and then draft a dissenting analysis.
Dissenters don't have time to read the memos. They're too busy yelling about "torture."
From Protein Wisdom:
You want to know what torture is? The severe mental anguish born of knowing that there are politicians in your country who, in exchange for increasing their own hold on power, will readily discount the difficulty of your choices in dealing with the prospect of additional unanounced attacks by suicidal fundamentalists and then try publicly to pillory you for making them, all in an effort to win a bit cheap grace.