Detainees kneel during an early morning Islamic prayer at the U.S. military prison for "enemy combatants" on October 28, 2009 in Guantanamo Bay, Cuba.
Eight years after the last U.S. detainee was waterboarded, America is still debating whether it crossed the line of torture — and whether it was worth it. At the Aspen Institute’s annual Security Forum on July 30, the debate came into full view as Slate’s Dahlia Lithwick moderated a panel featuring the author of the memo that provided the legal justification for waterboarding John Yoo; his former boss, then Attorney General Alberto Gonzales; the head of the American Civil Liberties Union, Anthony Romero; a liberal law professor who has argued relevant cases before the Supreme Court, David Cole; and former New York City and L.A. police chief Bill Bratton.
It’s worth watching the entire video for highlights, like when Romero called for Yoo’s prosecution, and Yoo suggested that if the ACLU ran a war, it would start by handing over guns to the enemy. On the specific question of torture, there was the usual muddle: Romero asserted that the U.S. had embraced torture, while Yoo asserted that none of the “enhanced-interrogation techniques” he authorized were banned by the U.S. anti-torture statute. To my mind, waterboarding is clearly torture, and here is why:
The statute defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” And it defines “severe mental pain or suffering” as:
the prolonged mental harm caused by or resulting from—
You can disagree, but it’s the law, and everyone from Yoo to Gonzales to Jose Rodriguez (who ran the CIA’s enhanced-interrogation program) to former National Security Adviser Stephen Hadley accepts that the Bush Administration had to act within the constraints of that law.
The purpose of waterboarding is to induce a body’s physical response to drowning. Here is the CIA’s description of the procedure, according to Yoo’s memo:
In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of “suffocation and incipient panic,” i.e., the perception of drowning.
What could be a clearer definition of the “threat of imminent death” than a body’s physical reaction to imminent death?
I asked Gonzales and Hadley this question after the session, and both said they didn’t have an answer. I then asked Yoo, who said he didn’t remember how the question had been addressed in his memos. There is a reason for that — the memos didn’t address it. They only respond to the statute’s language regarding lasting pain and suffering. In a later conversation with Hadley and former CIA chief Michael Hayden, the two men argued that by my definition, all the airmen who had been waterboarded as part of their Survival, Evasion, Resistance and Escape training would have been tortured. According to the law, though, the airmen aren’t in custody and the threat of imminent death isn’t induced under color of law.
Earlier in the conference, John McLaughlin, who had been the CIA’s No. 2 during the period when waterboarding was used, said Americans were not yet debating torture in an unemotional way. He’s right. Bush critics don’t help the U.S. come to grips with what happened when they self-righteously attribute to the men and women who created the program of enhanced-interrogation techniques immoral motives or even evil ones.
But if the legal defenders of waterboarding do not have a convincing answer as to why waterboarding doesn’t constitute a threat of imminent death, then waterboarding is torture under U.S. law.
So what? During the panel, Yoo suggested it may have been worth it:
Hasn’t any kind of infringement of civil liberties in this war, if they did occur, haven’t they been much less [than in previous wars like the Civil War and WW II], so wasn’t it worth it? ’Cause I think that’s the last thing to ask yourself. Everything about security and war and even law involves trade-offs, and so the last thing to ask yourselves is, Was the trade-off worth it, even if what they say is true?
Violating our own law against torture should have a pretty high bar (and in any case, some kind of consequence, if only public acknowledgment of the violation). But during the panel, we again had the familiar debate over whether torture worked. Cole, citing Donald Rumsfeld and others, said there’s no way enhanced-interrogation techniques led, for example, to information that eventually bore the discovery of Osama bin Laden’s hiding place. Yoo, following several others, including Rodriguez,said the techniques were crucial.
The CIA’s McLaughlin said earlier in the conference that you could not draw a direct link. “You cannot make an absolute one-to-one connection” between the bin Laden operation and enhanced-interrogation techniques, he said, because, for example, the courier Abu Ahmed al-Kuwaiti, in whose house bin Laden was eventually found, was identified both by those who had been waterboarded and by those who hadn’t been exposed to enhanced-interrogation techniques. On the other hand, McLaughlin said, it was “highly unlikely” the U.S. would have developed the information needed to get bin Laden without the CIA detention program.
That distinction between waterboarding and the CIA detention program is important. A former CIA official with direct knowledge of the program told me that of the two people who were waterboarded who named al-Kuwaiti as the courier, one gave the information up not as a result of the waterboarding but as a result of sleep deprivation. At least in the case of finding bin Laden, the information that came exclusively from waterboarding continues to shrink.
So was it worth it? The Center for Victims of Torture (CVT), which spends most of its time on the front lines treating the “prolonged mental harm” of those who have been tortured, says the following on the subject of waterboarding and mock execution:
• Survivors say mock executions left them feeling they were already dead
• Survivors relive these near-death experiences in their nightmares or flashbacks
• CVT clients have told us that they pleaded with their torturers to kill them, preferring real death over the constant threat and intolerable pain it caused
It’s not clear to me how one would gauge prolonged mental harm in someone as murderous as Khalid Sheikh Mohammed. But if any threat of imminent death can produce lasting mental harm of the kind that CVT describes, inducing the physical reaction to drowning in order to break a detainee’s psychological resistance to interrogation must be capable of it.
And regardless of how awful the three men who were waterboarded are, and regardless of what information came exclusively from waterboarding as opposed to other techniques, I find it heartbreaking that the U.S. was on the wrong side of that victim-perpetrator equation.