Definitions and defaults in torture:
Torture, as prohibited by U.S. law, is treatment that inflicts "severe physical or mental pain or suffering." But how do we know when a particular interrogation technique imposes "severe physical" or "severe mental" pain or suffering?
To answer that question, the 2002 Bybee memo released Thursday relies heavily on the lessons learned from a U.S. interrogation training program for military personnel called Survival, Evasion, Resistance, Escape (SERE). In SERE training, U.S. military personnel have been subjected to the very techniques proposed for suspected Al Qaeda agents — including the most extreme of the techniques, like extended sleep deprivation and waterboarding. The discussion is at pp. 4-6 in the Bybee memo. Basically, the memo says that the CIA has concluded based on consulting with SERE experts that these methods have caused no "severe physical or mental" harm to U.S. military personnel subjected to them.
There's a lot more in the memo but, frankly, it seems to me that's the heart of it. It's not really a "legal" conclusion calling for the specialized training of a lawyer, in the sense that you can find it in a statute or a binding precedent, but an experiential and empirical one.
So my question is this: how relevant is the SERE experience? Let's assume it's true that U.S. personnel in training programs have suffered no severe mental or physical consequences, and let's assume the enemy detainee would be subjected to no more severe version of the same techniques. (The latter assumption turned out to be untrue: waterboarding as used by the CIA was more intensive than that used in SERE training, according to a May 10, 2005 Steven Bradbury memo to the CIA, see p. 41 n. 51).)
It's one thing to know you are part of a controlled training program administered by your country's own personnel who have no interest in killing or permanently damaging you, and also to know that however awful it is there will be an end of it. It's another thing to be captured by the enemy and subjected to the same technique, but with no assurance of control or a time limit. The former "interrogator" you know to be acting with your health and safety in mind; the latter, as far as you know, has no such concerns beyond getting information from you.
Maybe the objective level of physical pain or suffering is the same whether the technique is inflicted in a training program or in an enemy interrogation. But wouldn't the prospect of such techniques without end and without control, inflicted by an enemy, risk much greater (and perhaps longer term) mental pain or suffering?
Bybee doesn't even seem aware of these differences, much less account for them in his memo. To his credit, Bradbury saw the limited relevance of the SERE experience in his 2005 memo to the CIA, at p. 6:
Although we refer to the SERE experience below, we note at the outset an important limitation on reliance on that experience. Individuals undergoing SERE training are obviously in a very different situation from detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training.
Of course, despite the weakness of the evidence available, Bradbury also concluded that the proposed techniques -- including waterboarding -- were not torture. But at least he was candid about it.
There is some discussion of this in the comments to Orin's post of yesterday, including from at least one commenter who implies personal knowledge of SERE. It is claimed that in SERE the trainee loses any sense of safety, time, or perspective. It's hard to argue with actual experience, but if you haven't been through enemy interrogation you can't really know how much worse it might be than SERE using the same techniques. So you can't know how much more likely it is to inflict severe mental pain or suffering. And Bybee acknowledges that there is "no empirical data on the effect of these techniques, with the exception of sleep deprivation." p. 6. (And the "empirical data" for the long-term physical and mental effect of sleep deprivation up to 11 days, the authority sought by the CIA in 2002, consisted of one case.)
With no statutory guidance, no precedent, the opinions of a few CIA consultants he did not personally consult and whose possible institutional and other biases he did not question, and mainly the reported results of the SERE program to guide him, how did Bybee know whether the proposed techniques were torture?
The answer, I think, does not come in the anodyne prose of Bybee's "legal" analysis. It is implicitly contained on the very first page of his memo to the CIA:
The interrogation team is certain that [Abu Zubaydah] has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas. Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information. Moreover, [CIA] intelligence indicates that there is currently a level of "chatter" equal to that which preceded the September 11 attacks. In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you describe as an "increased pressure phase."
What Bybee is describing here can't quite be called a "ticking bomb" scenario one might see in a movie or read about in a law review article, but it's about as close as one gets in real life. With the danger believed to be high and the detainee obviously knowledgeable, time becomes critical.
One can imagine a couple of default rules in cases of uncertainty about what constitutes torture: (1) err on the side of respecting the human dignity and health of the detainee, in accordance with longstanding national and international commitments and aspirations, or (2) err on the side of getting information believed to be necessary to protect human life, using techniques believed to work. The choice of default depends on which values seem paramount at the moment. It seems silly to think that these default rules and the values they represent are never in tension. And it seems too hard and pure to imagine that there aren't cases and times, like America in 2002, where one might sometimes choose the latter default rule over the former.
Where one could fault Bybee is in his initial call about which techniques are close to the line of torture and thus subject to an uncertainty default rule at all. Putting someone in uncontrollable fear of imminent death by drowning -- as in water boarding -- is a death threat. Forcing someone to stay awake for up to 11 days, perhaps by making them stand, shackled to a ceiling or wall (the precise method for keeping them awake is, incredibly, not even considered in the Bybee memo), at least runs a serious risk of causing severe physical or mental pain or suffering.
Bybee had before him a prospect we do not confront. If he refused to authorize the techniques the CIA told him it wanted to use, and on that basis the CIA did not use the techniques and did not get further information from Zubaydah, and a devastating terrorist attack followed, his high regard for human dignity would today be seen as a foolish and even calloused disregard for human lives.
All of this may argue for more precision in the definition of torture, including the banning of specific techniques of interrogation in federal law (as opposed to executive policy). Of course that would limit the flexibility one needs to meet unforeseen and dire circumstances. But one way or another torture will be given clearer definition: either in open democratic debate or in secret memos and prisons.