Patrick, Sarah Palin’s comparison of waterboarding to baptism, even in jest, was bad judgment. If I were Gov. Palin, I’d lose all the baptism jokes, since they manage to provoke devout Christians and authentic Muslim moderates as much as they do jihadists. But I think it is a mistake so off-handedly to agree with the Left’s political and hypocritical claim that waterboarding, as applied by the CIA to three high-value al Qaeda detainees under careful (albeit controversial) guidelines, amounted to “torture.”
As we discussed ad nauseum during the debate over “enhanced interrogation,” there is no question that waterboarding can amount to torture (and, indeed, can result in death) depending on the technique used. Nevertheless, torture—if we are talking about the crime, as opposed to using loose rhetoric about physical or mental abuse—has a legal definition. It requires the infliction of severe pain and suffering by a government official who deliberately and consciously intends to torture his victim. (Title 18, U.S. Code, Sec. 2340 et seq.) Moreover, to qualify as psychological torture, the infliction needs to be “prolonged mental harm” of the kind caused by the infliction or threatened infliction of severe pain, or “the threat of imminent death.” (It can also include things irrelevant to our consideration, such as use of mind-altering substances or the threat that third parties, like family members, might be tortured or killed.) Waterboarding the way the CIA executed was highly uncomfortable, but it did not cause severe pain, it was of short duration, and it did not cause fear of imminent death (the detainees were told that they were not going to be killed).
As I’ve previously noted, Attorney General Holder conceded in congressional testimony that the use of waterboarding in the training of some U.S. military personnel was not torture because there was no intent to torture. Furthermore, the Obama Justice Department adopted the Bush administration’s very narrow legal definition of torture before a U.S. appeals court in a case involving John Demjanjuk, the late alleged Nazi concentration camp guard who raised fear of torture in fighting his deportation to Germany. And as Karl Rove has recounted, when bipartisan congressional leaders (including Nancy Pelosi, then the ranking Democrat on the House intelligence committee) were briefed on what the CIA was up to on the interrogation front, their main concern was “whether we were doing enough” to extract information from detainees.
None of this necessarily means the use of physically abusive interrogation methods, waterboarding included, was good policy. People who want a categorical ban on such tactics constantly avoid addressing the ticking-bomb scenario and similar questions that bring the logic of their position into stark relief: forced to choose, they would prefer the occurrence of a preventable atrocity and the loss of perhaps thousands of lives to interrogation that harms a hair on the head of a culpable terrorist. In turn, people who argue against categorical bans (as I have done) often avoid addressing the inevitability that tactics they endorse for dire circumstances will be applied in less dire circumstances—and that our resistance to a ban, even though highly qualified, could encourage rogue regimes in their more routine use of abusive practices.
This has always been a worthy debate. The debate, however, has never been well served by peremptorily describing the hotly disputed “enhanced interrogation” tactics as “torture.” As Rich pointed out back when this was a more heated argument, “One reason critics [of enhanced interrogation tactics for high-value terrorist detainees] have been faring so well in this debate is that they dishonestly conflate basically any interrogation method not acceptable in a domestic criminal context with ‘torture.’” I am not contending that all critics of waterboarding have done this; and even defenders of waterboarding as employed by the CIA must concede it is closer to the definition of real torture than other abusive tactics that were used. I’d further note that Rod Dreher, who is obviously convinced that waterboarding is torture, does not mock the counter-position and, like me, finds most objectionable Gov. Palin’s comparison of waterboarding to baptism. (“Even if you don’t believe that waterboarding is torture, surely you agree that it should not be compared to baptism, and that such a comparison should be laughed at [as a joke].”)
All that said, there is a very strong factual and legal argument that what our government did was not torture. It remains unpopular to posit that claim in chattering-class company, but that doesn’t make it any less so.