Pointing a loaded gun at a liberal’s head will make a tingle run down his leg, and not in the same way that Chris Matthews feels when he watches his private DVD collection of Obama speeches with a tub of Cherry Garcia and a box of Kleenex.

Torture Memos

We have learned that the terrorists were subjected to the following “tortures:”

• sleep deprivation;
• waterboarding (3 detainees);
• smoke was blown in their faces;
• guns and drills were pointed at their heads;
• they were made to walk past hooded guards dressed to look as if they were executed detainees; and
• being told that, if Americans were killed, the terrorists families and children would be found and killed.

The UN Convention Against Torture (UNCAT) defines “torture” as

“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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person…”

So even in liberal Europe, torture requires the infliction of severe pain or suffering, whether that pain or suffering is physical or mental.  For example, actually killing a person’s child in front of them would cause them no physical pain, but would cause them obvious severe mental pain and suffering.  Under U.S. law, however, the definition of torture is somewhat more limited;

“torture” means an act committed by a person . . . specifically intended to inflict severe physical or mental pain or suffering . . .;

“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;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;

The UN, of course, would rather let an attack succeed than allow a terrorist to suffer discomfort for a few minutes.

The difference in the two definitions is subtle, but important and it flows from the phrase “prolonged mental harm” in the definition of severe mental pain or suffering.  Under the UNCAT, arguably, sleep deprivation and merely threatening to kill someone’s children is torture because it is intended to (and may actually) create instantaneous severe mental suffering.  Under U.S. law, however, unless that mental harm is “prolonged,” there is no torture.  (The judgment, and the difficulty, of course, is what does “prolonged” mean.  Five minutes or five days?)  For example, it would arguably not be torture under U.S. law to show a terrorist that their children were in U.S. custody, show the children with a gun to their head and show them being executed in order to obtain information about an imminent attack; provided that you later gave up the rouse and showed the terrorist that it was smoke and mirrors and their children were unharmed (removing the prolonged nature of the mental harm).  (This was done in an episode of 24 and differently in The Unit).  The UN, of course, would rather let the terrorist’s attack succeed than allow a terrorist to suffer discomfort for a few minutes.

Of course, in the memos, we learned that the CIA did not even do this.  The CIA agent was making a prospective contingent threat: “if more Americans die, I will hunt down your children and kill them.”  Legally this is wholly different than the statement (whether the interrogator is lying or not) that “we have your children in custody right now, and if you don’t talk, we’re going to kill them.”  The first is conditional and hypothetical.  The other is an imminent threat and arguably torture.

Moreover, most of the tactics used above are enhanced versions of simple police interrogation tactics.  Police are allowed to, and very often do, lie to suspects. They tell suspects that other people are cooperating when they are not.  They threaten suspects with unreasonable jail time.  They refuse water or bathroom breaks, they prevent suspects from sleeping or leaving the interrogation room.  These are all legal coercive methods used by U.S. police on a daily basis in order to obtain information or a confession from suspects.  If taken to the extreme, these interrogation tactics may undermine the validity of a confession, but they would never be deemed “torture” under U.S. law.

In my legal opinion, none of the tactics used above were torture.  At no time was there severe physical harm done to any detainee.  Waterboarding is the most difficult case, but the United States routinely performs waterboarding on our own personnel during pilot, military and intelligence operative training.  To argue that there is severe physical harm would be difficult.  As to mental pain or suffering, although none of these are pleasant experiences, none of the detainees are pleasant people. Mental pain and suffering is subjective.  Threatening to kill a 90-year old with a weak ticker may be torture.  Threatening to kill Tony Soprano is not going to be a prosecutable case of torture.

Liberals seem to put themselves in the detainee’s cell in Gitmo and empathize.  Well there’s a problem with that–the terrorist didn’t grow up eating Cheerios and watching Teletubbies, go to a nice Ivy League school and get a trendy apartment on the Upper West Side.  He grew up in a country with stonings and rape rooms and spent the last 10 years living in a hovel, watching people get beheaded, or beheading them himself.  Pointing a loaded gun at a liberal’s head will make a tingle run down his leg, and not in the same way that Chris Matthews feels when he’s watching his private best-of DVD collection of Obama speeches at home with a tub of Cherry Garcia and a box of Kleenex.  Pointing a loaded gun at Mohammed Rahim al-Afghani is just another way of pointing at him.

Cannot Interrogate Anyone
The second “unimportant” announcement made during Obama’s vacation was that the job of interrogating high-value detainees was being stripped away from the CIA and given to a new committee, headed by the FBI.  This is adding insult to injury and demeans a CIA with already cripplingly low morale.  As Krauthammer pointed out, this means that if we capture Osama bin Laden, he will be served tea and crumpets by the FBI, but if get a goat herder crossing the wrong field in Afghanistan, it’s the full might of the CIA to the rescue.

Obama is now ginning up a controversy in order to “manufacture” support in his flagging base by politicizing the CIA’s past conduct.

In addition, Obama has announced that the CIA operatives who conducted these interrogations, in some cases six or seven years ago, may be criminally prosecuted, despite his promise to the contrary only four months ago.  Heaping on the good news, Obama will continue rendition, which is the process by which some detainees are remanded to foreign governments for “interrogation” (read as “actual torture”).

The point here is that there are fine legal lines to be drawn over what conduct constitutes torture.  Judgment calls were were made by a prior administration who saw a clear need to protect the American public.  Obama is now ginning up a controversy in order to “manufacture” support in his flagging base by politicizing the CIA’s past conduct.  This is a blatant attempt to shore up his base and lick his wounds from a bruising healthcare battle and the embarrassments of his short tenure.

But his conduct has consequences.  The CIA is not a collection of automatons.  The operatives there see the hand writing on the wall, and those who decide to remain in intelligence gathering will naturally be more cautious under Obama.  When the airliners begin flying into buildings again, and the fingers begin to be pointed, the American public will remember that these were the decisions that lead to the tragic and preventable second 9/11.