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The torture debate

Why does the line between coercion and torture seem so shadowy now?

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He notes that even though doctors and others monitor the subject, their presence doesn't lessen the fear because "the subject is not aware of any of these precautions." And yet: "Although the waterboard constitutes a threat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering." More plainly, the imminent death threat is secondary.

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The primary issue is the bigger picture: Does a practice result in "severe mental harm," and does that mental harm last? If the answer is no, Bybee asserts, then – even if it's waterboarding, and even if we all agree that the body thinks it's going to die – it doesn't count as torture.

Bybee concludes that there's no long-lasting mental harm from waterboarding because the US military waterboards its service men and women during high-intensity Survival, Evasion, Resistance and Escape (SERE) training, designed to toughen them against techniques they might experience at the hands of an enemy. The CIA informed Bybee that no SERE students suffered lasting psychological effects. Only two dropped out, and only "on rare occasions some students temporarily postponed the remainder of their training and received psychological counseling." In other words, if US soldiers can handle the waterboard, so can Al Qaeda suspects.

EVEN IF ALL AMERICANS AGREED with the policy conclusions of these memos, the authors' ethics are in question. The Justice Department is expected to release this month findings of a year-long review into whether three memo authors violated professional ethics. Such a breach is clear, says Scott Horton, a visiting professor of law at Hofstra University in Hempstead, N.Y., and a lecturer at Columbia University's law school. "It would take roughly 20 minutes using legal search databases to identify a long series of cases ... dealing with waterboarding, in which courts looked at its practice and made conclusions about its legality. Every single one ... say[s] it's a crime." Not one, he notes, is mentioned in the memos.

What was disclosed in a 2005 memo by Stephen Bradbury, Bush's principal deputy assistant attorney general, was concern about the Constitution's preclusion of punishments that "shock the conscience." He notes that there is "significant evidence that the use of enhanced interrogation techniques might 'shock the conscience' in at least some contexts." He acknowledges that the State Department's definition of torture seemed at odds with the Justice Department's. In State's annual human rights reports, it objected to torture techniques – including some described in the memos – used in Egypt, Syria, Indonesia, and Iran.